Hazardous air pollutants, migrating hot spots, and the prospect of data-driven regulation of complex industrial complexes

Texas Law Review

Volumn 86, Issue 7, 2008, Pages 1445-1492

  McGarity, Thomas O ^a  

^a UNIVERSITY OF TEXAS SCHOOL OF LAW   (United States)

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EID: 50049129609     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (313)

1. See, e.g., Janet Wilson, EPA Shortens Science Reviews, Angering Some, L.A. TIMES, Dec. 8, 2006, at A38 (discussing outrage among environmentalists and politicians at EPA's removal of lead from the list of criteria pollutants).
2. Clean Air Act § 108(a)(1)(B), 42 U.S.C. § 7408(a)(1)(B) (2000).
3. See, e.g., Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 615-21 (1980) (acknowledging that a lower concentration of benzene, a HAP, could pose a risk to workers in the petrochemical and steel industries).
4. National Primary and Secondary Ambient Air Quality Standards, 40 C.F.R. §§ 50.1-50.14 (2007).
5. See COMM. ON RISK ASSESSMENT OF HAZARDOUS AIR POLLUTANTS, NAT'L RESEARCH COUNCIL, SCIENCE AND JUDGMENT IN RISK ASSESSMENT 36-37 (1994) [hereinafter SCIENCE AND JUDGMENT IN RISK ASSESSMENT] (observing the lack of standards for regulating HAPs).
6. See Miranda M. Loh et al., Ranking Cancer Risks of Organic Hazardous Air Pollutants in the United States, 115 ENVTL. HEALTH PERSP. 1160, 1160 (2007) (ranking benzene and butadiene among organic compounds posing the highest risk of cancer based on concentration levels observed in urban areas and carcinogenic effects).
7. See OFFICE OF AIR QUALITY PLANNING & STANDARDS, EPA, RESIDUAL RISK: REPORT TO CONGRESS 1 (1999) [hereinafter EPA RESIDUAL RISK REPORT] (describing EPA's two phases of standard setting: for technology-based standards and residual-risk standards). The Clean Air Act defines residual risks as risks to public health or the environment "remaining, or likely to remain, from sources" subject to the technology-based standards after their application. 42 U.S.C. § 7412(f)(1)(A) (2000).
8. 42 U.S.C. § 7412(f)(2)(A).
9. U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-06-669, CLEAN AIR ACT: EPA SHOULD IMPROVE THE MANAGEMENT OF ITS AIR TOXICS PROGRAM 17-18 (2006), available at http://www. gao.gov/new.items/d06669.pdf.
10. Id. at 16 tbl.4.
11. See David M. Friedland & James R. Greene, Residual Risk Standards: "Phase Two" of Clean Air Act's Air Toxics Provisions, 111 Daily Env't Rep. (BNA) B-1 (June 10, 2005) (summarizing the provisions of the Act that define EPA's role) (June 5, 2005); Bradford C. Mank, What Comes After Technology: Using an "Exceptions Process" to Improve Residual Risk Regulation of Hazardous Air Pollutants, 13 STAN. ENVTL. L.J. 263, 272-77 (1994) (discussing the determinations that EPA must make in its residual-risk report).
12. See Clean Air Amendments of 1970 § 112, Pub. L. No. 91-604, 84 Stat. 1676, 1685-86 (1970) (current version at 42 U.S.C. § 7412 (2000)) (specifying EPA's responsibilities for issuing health-based HAP standards).
13. EPA RESIDUAL RISK REPORT, supra note 7, at 7-9.
14. 42 U.S.C. § 7412(d)(3) (2000). If the Agency chooses to do so, it may modify the technology requirement for "area sources" of listed HAPs to reflect a somewhat less stringent standard of "generally available control technologies or management practices." Id. § 7412(d)(5). In the case of listed HAPs for which a "health threshold" exists, the Agency "may consider [the] threshold level, with an ample margin of safety," in establishing the relevant NESHAPs. Id. § 7412(d)(4). The new standard is referred to in the Act as the "maximum achievable control technology" (MACT). Id. § 7412(g)(2).
15. Id. § 7412(f)(2)(A).
16. Id. The Agency is not required to promulgate residual-risk standards for area sources. See id. § 7412(d)(5) (noting that the Agency "may...elect to promulgate standards" regarding area sources).
17. U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 9, at 4.
18. Id. at 5. The term "bureaucracy-forcing" lawsuits refers to suits brought by regulatory beneficiaries against an agency in order to "compel agency action unlawfully withheld or unreasonably delayed." Sidney A. Shapiro & Thomas O. McGarity, Reorienting OSHA: Regulatory Alternatives and Legislative Reform, 6 YALE J. ON REG. 1, 15 n.88 (1989) (quoting 5 U.S.C. § 706(1) (1982)).
19. U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 9, at 5.
20. EPA RESIDUAL RISK REPORT, supra note 7, at 2.
21. Id. at 42.
22. Id. at 34. See also Thomas O. McGarity, Missing Milestones: A Critical Look at the Clean Air Act's VOC Emissions Reduction Program in Nonattainment Areas, 18 VA. ENVTL. L.J. 41, 57-59 (1999) (discussing EPA's use of emission factors).
23. EPA RESIDUAL RISK REPORT, supra note 7, at 34. See also EPA, NATIONAL AIR TOXICS PROGRAM: THE INTEGRATED URBAN STRATEGY 6-4 (2000) [hereinafter EPA URBAN TOXICS STRATEGY] (pointing out that emissions factors are often supported by data from one or two tests).
24. EPA RESIDUAL RISK REPORT, supra note 7, at 67 (emphasis omitted).
25. Id. (emphasis added).
26. EPA URBAN TOXICS STRATEGY, supra note 23.
27. Id. at 2-1.
28. Id. at 6-12.
29. Id.
30. Id. at ES-2 (emphasis omitted). See generally Mank, supra note 11, at 290 (describing "hot spots" as "relatively high concentrations of particular pollutants [that] may accumulate within the larger pollution control region").
31. EPA URBAN TOXICS STRATEGY, supra note 23, at ES-2.
32. Id. at 1-5 (emphasis omitted). The Report observed that when state and federal agencies use monitoring data to determine ambient levels of HAPs, "the ability to identify the particular emitting source may be lost unless the placement of the monitor allows for the detection of HAP contributions from uniquely identifiable sources." Id. at 2-4.
33. Id. at 3-3, 5-4.
34. Id. at 4-25.
35. Id. at 5-4.
36. Id. at 5-23.
37. See Jamie A. Grodsky, Genetics and Environmental Law: Redefining Public Health, 93 CAL. L. REV. 171, 185-86 (2005) (describing the biomarkers of exposure).
38. SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 5, at 44-45; see also Grodsky, supra note 37, at 185-86 (comparing biomarkers to less precise methods of exposure assessment).
39. SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 5, at 49.
40. See OFFICE OF INSPECTOR GEN., EPA, PROGRESS MADE IN MONITORING AMBIENT AIR TOXICS, BUT FURTHER I MPROVEMENTS CAN INCREASE EFFECTIVENESS 1-4 (2005) (observing the historic use of ambient monitoring by state and local regulatory agencies, as well as EPA's more recent efforts, and advocating an expanding role for ambient monitoring); U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 9, at 35 (recounting the successful development of a regulatory program based on ambient monitoring data for a Louisville, Kentucky industrial complex). Although biomarkers and personal sampling devices hold great promise for the future, this Article will focus exclusively on the better understood and generally more available ambient-air-monitoring techniques.
41. The Agency has established a nationwide monitoring network consisting of stationary monitors at twenty-two locations around the country and measures ambient concentrations of six of the 188 listed HAPs. U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 9, at 31-32. The Agency's Inspector General reported in 2005 that the network has serious shortcomings, including "limited monitoring in areas with the highest estimated cancer risks from air toxics as well as inconsistencies in the operation of the monitors." Id. at 32 (citing OFFICE OF INSPECTOR GEN., EPA, PROGRESS MADE IN MONITORING AMBIENT AIR TOXICS, BUT FURTHER IMPROVEMENTS CAN INCREASE EFFECTIVENESS (2005)).
42. SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 5, at 45, 117-18 (listing the models used by EPA to measure air quality).
43. Id. at 117. In particular, "neither actual airborne concentrations nor measured integrated exposures to any airborne constituent were compared with the model results to test its utility in estimating individual or population exposures." Id.
44. Id. at 118. Although it relies heavily upon dispersion modeling in estimating human exposures to HAPs, the Agency itself recognizes that "[predictions of ambient concentrations...derived from atmospheric dispersion models have rarely been validated." EPA RESIDUAL RISK REPORT, supra note 7, at 43.
45. SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 5, at 49.
46. OFFICE OF AIR QUALITY PLANNING AND STANDARDS, EPA, EVALUATING EXPOSURES TO TOXIC AIR POLLUTANTS: A CITIZEN'S GUIDE (1991), available at http://www.epa.gov/air/oaqps/ air_risc/3_90_023.html.
47. National Emission Standards for Hazardous Air Pollutants from Petroleum Refineries, 72 Fed. Reg. 50,716 (proposed Sept. 4, 2007) (to be codified at 40 C.F.R. pt. 63).
48. Id. at 50,718.
49. Id. at 50,719.
50. Id. at 50,721. The agency also decided to promulgate MACT-based standards for cooling towers. Id. at 50,722. Since this source had not been subject to the earlier MACT standards, the agency simply promulgated a MACT-based requirement and put off any residual-risk analysis until after the industry had come into compliance with that technology-based standard. Id. at 50,721.
51. Id. at 50,721.
52. The TCEQ has at times relevant to this account been known as the Texas Air Control Board (TACB) and the Texas Natural Resources Conservation Commission (TNRCC). Tex. Comm'n on Envtl. Quality, TCEQ History, http://www.tceq.state.tx. us/about/tceqhistory.html. This Article will refer to the agency as the TCEQ for present and future purposes.
53. See generally Memorandum from Tim Doty & Mark Stine, Tex. Natural Res. Conservation Comm'n, to JoAnn Wiersema, Tex. Natural Res. Conservation Comm'n 20 fig.1 (Oct. 24, 2000) (on file with the Texas Law Review); Memorandum from Allison Jenkins, Tex. Natural Res. Conservation Comm'n, to Leonard Spearman, Jr., Tex. Natural Res. Conservation Comm'n (Mar. 8, 2000) (on file with the Texas Law Review).
54. See TEX. HEALTH & SAFETY CODE ANN. § 382.011 (Vernon 2001) (granting TCEQ general powers and duties for regulating air pollution); TEX. HEALTH & SAFETY CODE ANN. § 382.051 (Vernon Supp. 2007) (authorizing TCEQ to issue permits).
55. See, e.g., TEX. HEALTH & SAFETY CODE ANN. § 382.0541(a) (Vernon 2001) (authorizing TCEQ enforcement of federal Clean Air Act standards).
56. 30 TEX. ADMIN. CODE § 116.110 (2007) (Tex. Comm'n. on Envtl. Quality, Applicability).
57. See 30 TEX. ADMIN. CODE § 115.352 (2007) (Tex. Comm'n. on Envtl. Quality, Control Requirements) (requiring petroleum refineries and other chemical-manufacturing processes to take measures to reduce fugitive emissions of volatile organic compounds).
58. Roughly one-third of the total emissions of HAPs reported under the Emergency Planning and Community Right-to-Know Act (EPCRA) in Texas in 1999 were fugitive emissions. See EPA, Toxics Release Inventory (TRI) Explorer, available at http://www.epa.gov/triexplorer/ (indicating approximately 18.8 million fugitive-air-emissions reports out of 66.7 million total air-emissions reports).
59. THOMAS O. MCGARITY & KAREN SOKOL, CTR. FOR PROGRESSIVE REFORM, WHITE PAPER NO. 605, MAN-MADE DISASTER: TEXAS'S FAILURE TO PROTECT ITS CITIZENS FROM THE PERILS OF THE HOUSTON PETROCHEMICAL COMPLEX 8 (2006), available at http://www.progressiveregulation. org/articles/HPC_605.pdf; see also AIR QUALITY DIV., WYO. DEP'T OF ENVTL. QUALITY, OIL AND GAS FACILITIES PERMITTING GUIDANCE 12 (2007), http://deq.state.wy.us/aqd/Oil%20and%20Gas/ AUGUST%202007%20O& G%20GUIDANCE%20-%20FINAL.pdf ("There are always leaks, no matter how minimal, from pipe connectors, flanges, fittings, gaskets, pump packing, hammer unions, tank hatches, pneumatic controllers, etc.").
60. MCGARITY & SOKOL, supra note 59, at 8.
61. Id.
62. 40 C.F.R. §§ 63.113-63.149 (2007). The fugitive emissions limit "is not fixed and can change as the emission from each emission point changes or as the number of emissions points in the source changes." Id. § 63.112(a).
63. See id. § 63.112(e)(2) (exempting owners and operators of organic-chemical facilities from calculating their fugitive emissions); id. § 63.642(k)(2) (exempting owners and operators of oil refineries from calculating their fugitive emissions). Although the Emergency Planning and Community Right-to-Know Act requires a source to take fugitive emissions into account in providing "reasonable estimates" of the facility's overall annual emissions of listed hazardous substances, these estimates can be based on rough, back-of-the-envelope approximations and are therefore not a reliable proxy for a full-fledged accounting of fugitive emissions of particular hazardous air pollutants. See 42 U.S.C. § 11023(g)(2) (2000) (requiring a covered facility only to make "reasonable estimates of the amounts involved" when data is unavailable and clarifying that "[n]othing in this section requires the monitoring or measurement of the quantities, concentration, or frequency of any toxic chemical released into the environment").
64. 40 C.F.R. §§ 63.640-63.655.
65. See 30 TEX. ADMIN. CODE § 101.1(109) (2007) (Tex. Comm'n on Envtl. Quality, Definitions) (defining an "upset event" as an "unplanned and unavoidable breakdown...that results in unauthorized emissions").
66. All upsets, regardless of whether they meet compliance requirements, are technically "unauthorized" emissions. Id.
67. 30 TEX. ADMIN. CODE § 101.222(b)(2)-(3) (2007) (Tex. Comm'n on Envtl. Quality, Demonstrations).
68. See 30 TEX. ADMIN. CODE § 101.211(a) (2007) (Tex. Comm'n on Envtl. Quality, Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements) (requiring facilities to provide notice of expected excess emissions when performing shutdown and maintenance activities).
69. See id. (noting that shutdown and maintenance can lead to unauthorized emissions).
70. See id. (noting that unauthorized emissions can also result from startup activity).
71. E.g., id.
72. ENVTL. INTEGRITY PROJECT, GAMING THE SYSTEM: HOW OFF-THE-BOOKS INDUSTRIAL UPSET EMISSIONS CHEAT THE PUBLIC OUT OF CLEAN AIR 2 (2004), available at http://www. environmentalintegrity.org/pubs/ EIP_upsets_report_FULL.pdf.
73. Id. at 124.
74. Id. at 2.
75. Id. at 24-25.
76. Id. at 25.
77. See, e.g., Memorandum from Tom Randolph, Tex. Natural Res. Conservation Comm'n, to JoAnn Wiersema, Tex. Natural Res. Conservation Comm'n (Dec. 28, 2001) (describing the use of real-time mobile monitoring in an investigation of facilities in Texas City in November 2001) (on file with the Texas Law Review).
78. See, e.g., id. (explaining how real-time mobile monitoring can be easily relocated).
79. See, e.g., id. (providing an example of the use of real-time mobile monitoring in an investigation of facilities in Texas City in November 2001).
80. Interview with David Brymer, Manager, Lab. & Mobile Monitoring Section, Tex. Comm'n on Envtl. Quality, in Austin, Tex. (Sept. 11, 2002); Telephone Interview with Torin McCoy, Air Permits Div., Tex. Comm'n on Envtl. Quality (Aug. 14, 2002).
81. Interview with David Brymer, supra note 80.
82. Id.
83. Id.
84. Id.
85. Id.
86. Id.
87. Id.
88. An example of such a memorandum is the Memorandum from Allison Jenkins to Leonard Spearman, Jr., supra note 53.
89. E.g., id.
90. Tex. Comm'n on Envtl. Quality, About Effects Screening Levels, http://www.tceq.state.tx. us/implementation/tox/esl/ESLMain.html (last modified Apr. 17, 2008).
91. TOXICOLOGY SECTION CHIEF ENG'R'S OFFICE, TEX. COMM'N ON ENVTL. QUALITY, 2008 EFFECTS SCREENING LEVELS 1 (2008), available at http://www.tceq.state.tx.us/assets/public/ implementation/tox/esl/list/pdf.pdf. For some hazardous air pollutants, the agency has developed three-hour and twenty-four-hour ESLs as well. E.g., id. at 37, 52, 64, 93 (setting twenty-four-hour ESLs for 1,2-dichloroethane and ethylene dichloride, and three-hour ESLs for hydrogen fluoride and perchloryl fluoride).
92. Id. at 1.
93. Tex. Comm'n on Envtl. Quality, supra note 90.
94. Id. TCEQ is engaged in an ongoing process of reviewing the methodology that it uses for establishing ESLs. See Tex. Comm'n on Envtl. Quality, About the Chemicals Under Consideration for Effects Screening Levels Development, http://www.tceq.state.tx.us/implementation/tox/esl/ develop.html (last modified Mar. 13, 2008) (discussing the procedure for adding chemicals to the ESL list).
95. The refinery was originally built in 1934 by Pan American Oil Company. EPA: TRI Public Meeting, June 18-19, 1998, at 16 (1998) (statement of Joel Carpenter, Regulatory Services, Amoco Corp.), available at http://www.epa.gov/triinter/programs/public_meeting/stk-618.pdf.
96. Texas City, Texas, Detailed Profile, http://www.city-data.com/city/Texas- City-Texas.html.
97. MCGARITY & SOKOL, supra note 59, at 35.
98. SCOTT MGEBROFF, COLLECTION AND ANALYSIS OF THE AMBIENT AIR, TEXAS CITY, MARCH 1988, at 1 (1988) (on file with the Texas Law Review).
99. Id. at 1 tbl.1.
100. Memorandum from JoAnn Wiersema, Tex. Air Control Bd., to Doyle Pendleton, Tex. Air Control Bd. 1 (Mar. 1988) (on file with the Texas Law Review). The high hourly averages ranged from 50 ppb to 93 ppb and the high twelve-hour averages ranged from 34 ppb to 63 ppb. Id. These averages did not compare favorably with the Texas Air Control Board's (TACB) screening levels for benzene of 9 ppb hourly average and 6 ppb twelve-hour average. Id.
101. Id.
102. CHARLES SHEVLIN, SAMPLING & ANALYSIS DIV., TEX. AIR CONTROL BD., SAMPLING AND ANALYSIS OF THE AMBIENT AIR IN TEXAS CITY FOR BENZENE: FINAL REPORT 1 (1988).
103. Memorandum from Tom Dydek, Tex. Air Control Bd., to Doyle Pendleton, Tex. Air Control Bd. 1 (Aug. 1, 1989) (on file with the Texas Law Review).
104. Memorandum from Tom Dydek, Tex. Air Control Bd., to Doyle Pendleton, Tex. Air Control Bd. 1-2 (May 17, 1990) (on file with the Texas Law Review).
105. Id. at 2.
106. Memorandum from Mobile Monitoring Unit, Tex. Natural Res. Conservation Comm'n, to JoAnn Wiersema, Tex. Natural Res. Conservation Comm'n 1 (Dec. 12, 1995) (on file with the Texas Law Review).
107. Id. at 2-3; Memorandum from Janet Pichette, Tex. Natural Res. Conservation Comm'n, to Allen Parker, Tex. Natural Res. Conservation Comm'n 2 (Mar. 6, 1996) (on file with the Texas Law Review).
108. Memorandum from Janet Pichette to Allen Parker, supra note 107, at 2.
109. Id.
110. Id.
111. Memorandum from J. Torin McCoy & Allison Jenkins, Tex. Natural Res. Conservation Comm'n, to Leonard Spearman, Tex. Natural Res. Conservation Comm'n 1 (Jan. 8, 1998) (on file with the Texas Law Review).
112. Memorandum from Tim Doty, Tex. Natural Res. Conservation Comm'n, to JoAnn Wiersema, Tex. Natural Res. Conservation Comm'n 6 (Dec. 1, 1997) (on file with the Texas Law Review).
113. Memorandum from J. Torin McCoy & Alison Jenkins to Leonard Spearman, supra note 111, at 2.
114. See id. ("Long-term exposure to concentrations of benzene significantly higher than the annual ESL can increase the risk of chronic health problems, such as leukemia.").
115. Memorandum from Tim Doty, Tex. Natural Res. Conservation Comm'n, to JoAnn Wiersema, Tex. Natural Res. Conservation Comm'n 1 (Dec. 1, 1998) (on file with the Texas Law Review).
116. Memorandum from Allison Jenkins, Tex. Natural Res. Conservation Comm'n, to Leonard Spearman, Jr., Tex. Natural Res. Conservation Comm'n 2 (Jan. 19, 1999) (on file with the Texas Law Review).
117. Id. at 2.
118. Id. at 3.
119. Memorandum from Tim Doty to JoAnn Wiersema, supra note 115, at 8.
120. Id. at 8.
121. Id. at 11.
122. Id. at 12-13.
123. Id. at 13.
124. Id. at 14.
125. Memorandum from Allison Jenkins to Leonard Spearman, supra note 116, at 6.
126. Memorandum from Tim Doty, Tex. Natural Res. Conservation Comm'n, to JoAnn Wiersema, Tex. Natural Res. Conservation Comm'n 8-12 (Jan. 5, 2000) (on file with the Texas Law Review); Memorandum from Allison Jenkins to Leonard Spearman, supra note 53, at 2.
127. Memorandum from Allison Jenkins to Leonard Spearman, supra note 53, at 3.
128. Id.
129. Memorandum from Tim Doty & Mark Stine to JoAnn Wiersema, supra note 53, at 13.
130. Id.
131. Id.; Memorandum from Allison Jenkins to Leonard Spearman, supra note 53, at 3-4.
132. Memorandum from Allison Jenkins to Leonard Spearman, supra note 53, at 4.
133. Id.
134. Id.
135. Id.
136. Memorandum from Tim Doty, Tex. Natural Res. Conservation Comm'n, to JoAnn Wiersema, Tex. Natural Res. Conservation Comm'n 2 (Feb. 20, 2001) (on file with the Texas Law Review); Memorandum from Allison Jenkins & Laurel Carlisle, Tex. Natural Res. Conservation Comm'n, to Leonard Spearman, Tex. Natural Res. Conservation Comm'n 5 (Apr. 20, 2001) (on file with the Texas Law Review).
137. Memorandum from Allison Jenkins & Laurel Carlisle to Leonard Spearman, supra note 136, at 5.
138. Id. at 6.
139. Id.
140. Id. at 3.
141. Id.
142. Id.
143. Id.
144. Id.; Memorandum from Tim Doty to JoAnn Wiersema, supra note 136, at 3.
145. Memorandum from Allison Jenkins & Laurel Carlisle to Leonard Spearman, supra note 136, at 4.
146. Id. at 5.
147. Id.
148. Id.
149. TEX. NATURAL RES. CONSERVATION COMM'N, UPSET/MAINTENANCE INVESTIGATION REPORT OF MARATHON ASHLAND PETROLEUM LLC 8 (2001) (on file with the Texas Law Review) [hereinafter TNRCC MARATHON REPORT].
150. See U.S. Census Bureau, Census Bureau Home Page, http://www.census.gov/ (estimating a population of around 12,900 in 2006 when "Port Neches" is entered in "Data Finders" sidebar).
151. See Dan Wallach, Rubbermaker Stretches Capacity, BEAUMONT ENTERPRISE, Feb. 6, 2006, at E1 (describing the ISP takeover of the historic Port Neches synthetic rubber plant, which dates from World War II).
152. The rubber-manufacturing plant was owned and operated by Ameripol Synpol Corp. until the corporation filed for bankruptcy in 2004. See Dan Wallach, Plant Can Lose Supply Under New Owner's Call, BEAUMONT ENTERPRISE, Mar. 7, 2006, at 7B.
153. The butadiene plant was previously owned by Huntsman Petrochemical Corporation, which sold the facility to Houston-based Texas Petrochemical in 2006. See id. (reporting on Huntsman's announcement of its intent to sell its facility).
154. See Dan Wallach, Public to Get a Chance at a Piece of Huntsman, BEAUMONT ENTERPRISE, Sept. 14, 2004, at 4A.
155. Id.
156. Memorandum from Tim Doty & Mark Stine to JoAnn Wiersema, supra note 53, at 20 fig. 1 (showing a map of the Huntsman-Ameripol Synpol complex and neighborhoods to the west of the plants).
157. See id. (showing two blocks of residential neighborhoods west of the Huntsman-Ameripol Synpol complex).
158. See Dina Cappiello & Dan Feldstein, In Harm's Way: In the Buffer Zone, HOUS. CHRON., Jan. 20, 2005, at A1 (describing the trend throughout Port Neches and other Texas Gulf coast communities of oil and chemical companies purchasing adjacent homes to avoid environmental lawsuits).
159. The proximity of the plants to the high school can be seen at Live Search Maps, http://maps.live.com/?q=port+neches+tx&FORM=MSNH&mkt=en-US. Port Neches-Groves High School is located at 1301 Merriman St., Port Neches, TX, 77651. The neighborhood and the petrochemical complex are immediately to the east.
160. Letter from Vie Fair, Tex. Air Control Bd., to W.D. Spence, Ameripol Synpol Corp. 1 (Feb. 7, 1990) (on file with the Texas Law Review).
161. MARK LEIDIG, TEX. AIR CONTROL BD., FINAL REPORT: SAMPLING AND ANALYSIS OF THE AMBIENT AIR IN THE AREA OF PORT NECHES, JEFFERSON COUNTY, TEXAS 1, 6-7 (1989).
162. Id. at 6 tbl.3.
163. Id.
164. Memorandum from Marcia Willhite, Tex. Air Control Bd., to Doyle Pendleton, Tex. Air Control Bd. 3 (Nov. 13, 1989) (on file with the Texas Law Review).
165. Id. at 3-4.
166. Id.
167. Id.
168. Id.
169. Id.
170. Id.
171. Letter from Vic Fair to W.D. Spence, supra note 160, at 1.
172. Id. at 2.
173. JACKIE DURCHIN, TEX. AIR CONTROL BD., FINAL REPORT: SAMPLING AND ANALYSIS OF THE AMBIENT AIR IN THE AREA OF PORT NECHES, JEFFERSON COUNTY, TEXAS 1 (1990).
174. Id. at 24-26 figs. 1, 2 & 3.
175. Memorandum from Marcia Willhite, Tex. Air Control Bd., to Vic Fair, Tex. Air Control Bd. 3 (Mar. 21, 1991) (on file with the Texas Law Review).
176. Id.
177. Id.
178. Memorandum from W. Brian Howard, Tex. Natural Res. Conservation Comm'n, to Vic Fair, Tex. Natural Res. Conservation Comm'n 1 (Apr. 14, 1997) (on file with the Texas Law Review); Memorandum from Mobile Monitoring Team, Tex. Natural Res. Conservation Comm'n, to JoAnn Wiersema, Tex. Natural Res. Conservation Comm'n 1 (Oct. 16, 1996) (on file with the Texas Law Review).
179. Memorandum from Mobile Monitoring Team to JoAnn Wiersema, supra note 178, at 3.
180. Id.
181. Memorandum from Charles Wheat et al., Tex. Natural Res. Conservation Comm'n, to Vic Fair, Tex. Natural Res. Conservation Comm'n 3 (Aug. 5, 1999) (on file with the Texas Law Review).
182. Memorandum from Mobile Monitoring Team to JoAnn Wiersema, supra note 178, at 3.
183. Id.
184. Memorandum from Mobile Monitoring Unit, Tex. Natural Res. Conservation Comm'n, to JoAnn Wiersema, Tex. Natural Res. Conservation Comm'n 1 (Dec. 10, 1997) (on file with the Texas Law Review).
185. Id. at 3.
186. Memorandum from Loren G. Lund & Laurel Carlisle, Tex. Natural Res. Conservation Comm'n, to Vic Fair, Tex. Natural Res. Conservation Comm'n 2 (Jan. 14, 1998) (on file with the Texas Law Review).
187. Memorandum from Mobile Monitoring Unit to JoAnn Wiersema, supra note 184, at 4.
188. Memorandum from Loren G. Lund & Laurel Carlisle to Vic Fair, supra note 186, at 2.
189. Id.
190. Memorandum from Tim Doty, Tex. Natural Res. Conservation Comm'n, to JoAnn Wiersema, Tex. Natural Res. Conservation Comm'n 1 (Sept. 10, 1998) (on file with the Texas Law Review).
191. Id. at 8.
192. Id.
193. Id.
194. Memorandum from Charles Wheat, Tex. Natural Res. Conservation Comm'n, to Vic Fair, Tex. Natural Res. Conservation Comm'n 2 (Oct. 6, 1998) (on file with the Texas Law Review).
195. Memorandum from Tim Doty, Tex. Natural Res. Conservation Comm'n, to JoAnn Wiersema, Tex. Natural Res. Conservation Comm'n 8 (July 30, 1999) (on file with the Texas Law Review).
196. Id.
197. Id. at 11.
198. Memorandum from Charles Wheat, Tex. Natural Res. Conservation Comm'n to Vic Fair, Tex. Natural Res. Conservation Comm'n 2 (Aug. 25, 1999) (on file with the Texas Law Review).
199. Id.
200. Memorandum from Tim Doty & Mark Stine to JoAnn Wiersema, supra note 53, at 2-3.
201. Id. at 3.
202. Id.
203. Id. at 6-7.
204. Id. at 8.
205. Id.
206. Id. at 10.
207. Id.
208. Memorandum from Laurel Carlisle, Michael Honeycutt & Torin McCoy, Tex. Natural Res. Conservation Comm'n, to Vic Fair, Tex. Natural Res. Conservation Comm'n 1 (Dec. 1, 2000) (on file with the Texas Law Review).
209. Id. at 2.
210. Id.
211. Id.
212. See Letter from Ronald R. Franklin, Huntsman Corp., to Marion L. Everhart, Tex. Natural Res. Conservation Comm'n 1 (June 19, 1997) (on file with the Texas Law Review) (responding to notice of violation received at the Huntsman C4 Plant); Letter from J.E. LeBlanc, Ameripol Synpol Corp., to Marion L. Everhart, Tex. Natural Res. Conservation Comm'n 1 (June 18, 1997) (on file with the Texas Law Review) (responding to notice of violation received by Ameripol Synpol).
213. See Memorandum from Jeffrey A. Saitas, Tex. Natural Res. Conservation Comm'n, to Bill D. Forbes, Huntsman Corp. 1 (Jan. 4, 2001) (on file with the Texas Law Review) (notifying the Huntsman Corporation of the Director's decision to terminate the Agreement reached in April 1998).
214. See Memorandum from Charles Wheat & Laurel Carlisle, Tex. Natural Res. Conservation Comm'n, to Vic Fair, Tex. Natural Res. Conservation Comm'n 2 (Aug. 5, 1999) (on file with the Texas Law Review) ("As part of a trilateral agreement, Huntsman and Ameripol Synpol are required to operate a fence line monitoring system.").
215. Memorandum from Charles Wheat et al. to Vic Fair, supra note 181, at 2.
216. Id. at 2.
217. Id.
218. Id. at 2-3.
219. Id. at 3-4.
220. Id. at 4.
221. The data that appears in notes 221-32 and the accompanying text is contained in daily monitoring reports on file with the Texas Law Review. Only a portion of them are cited below.
222. E.g., Letter from Darla Smith, Huntsman Corp., to Marion Everhart, Tex. Natural Res. Conservation Comm'n 2 (July 16, 1999) (on file with the Texas Law Review) (recording ten alarms in a one-day period); Letter from Darla Smith, Huntsman Corp., to Marion Everhart, Tex. Natural Res. Conservation Comm'n 2 (July 20, 1999) (on file with the Texas Law Review) (recording thirty-nine alarms in a one-day period).
223. See, e.g., Letter from Darla Smith, Huntsman Corp., to Marion Everhart, Tex. Natural Res. Conservation Comm'n 2-5 (July 19, 1999) (on file with the Texas Law Review) (recording 158 alarms in a four-day period but offering comments of no more than six words for each alarm).
224. E.g., Letter from Darla Smith, Huntsman Corp., to Marion Everhart, Tex. Natural Res. Conservation Comm'n 2 (July 8, 1999) (on file with the Texas Law Review) (recording eleven alarms, four of which are labeled "nothing detected" and two of which are labeled "low reading").
225. E.g., Letter from Darla Smith to Marion Everhart, supra note 223, at 2-5 (recording 158 alarms, 64 of which are labeled "Not Huntsman zone").
226. E.g., Letter from Darla Smith, Huntsman Corp., to Marion Everhart, Tex. Natural Res. Conservation Comm'n 2 (July 16, 1999) (on file with the Texas Law Review) (recording ten alarms but identifying a source for only three).
227. E.g., id. (attributing two alarms to the "pilot plant sump").
228. E.g., Letter from Greg Berwick, Ameripol Synpol Corp., to Marion Everhart, Tex. Natural Res. Conservation Comm'n 1 (July 20, 1999) (on file with the Texas Law Review) (noting that "ASC recorded 49 alarms during this 24-hour period," but "other sources may also have been upwind," and "fugitives from the Recycle Styrene and Blended Styrene Tanks have been identified as a potential contributor to fence line alarms experienced downwind of the Monomer Tank Farm); see also Letter One from Anna Schwartz, Ameripol Synpol Corp., to Marion Everhart, Tex. Natural Res. Conservation Comm'n 1 (Sept. 13, 1999) (on file with the Texas Law Review) (stating that "ASC recorded five (5) alarms" on September 13, but that "[b]ased on the wind directions, ASC does not appear to have been contributing to the five alarms").
229. E.g., Letter Two from Anna Schwartz, Ameripol Synpol Corp., to Marion Everhart, Tex. Natural Res. Conservation Comm'n 1 (Sept. 13, 1999) (on file with the Texas Law Review) (stating that "ASC recorded 105 alarms" over a four-day period in July, of which ASC potentially contributed to only 77, and that "ASC's Monomer Tank Farm appeared to have been a potential contributor to 63 of these alarms").
230. Id.
231. Id.
232. Letter from Greg Berwick to Marion Everhart, supra note 228, at 1.
233. Memorandum from Jeffrey A. Saitas to Bill D. Forbes, supra note 213.
234. Letter from Louis H. Fowler, Huntsman Corp., to Troy Dalton, Tex. Natural Res. Conservation Comm'n 1 (Jan. 30, 2001) (on file with the Texas Law Review).
235. Telephone Interview with Laurel Carlisle, Air Permits Div., Tex. Comm'n on Envtl. Quality (Sept. 9, 2002).
236. E.g., URS CORPORATION, HUNTSMAN CORPORATION EXPANDED MONITORING PROGRAM AT THE C4 FACILITY IN PORT NECHES, TEXAS: MONTHLY MONITORING REPORT FOR THE PERIOD OF MARCH 2002 (Aug. 2002).
237. Id.
238. Id.
239. Id.
240. See generally S. PAL ARYA, AIR POLLUTION METEOROLOGY AND DISPERSION 220-21 (1999) (outlining the basic principles of plume dispersion theory).
241. MCGARITY & SOKOL, supra note 59, at 6.
242. Id.
243. See David E. Burmaster & Jeanne W. Appling, Introduction to Human Health Risk Assessment, with an Emphasis on Contaminated Properties, 25 Daily Env't Rep. (BNA) 2431 (Apr. 7, 1995) (noting that "risk assessors rarely consider acute health effects... and instead tend to focus on subchronic, chronic, or lifetime exposures").
244. See, e.g., DIV. OF HEALTH ASSESSMENT & CONSULTATION, U.S. DEP'T OF HEALTH & HUMAN SERVS., HEALTH CONSULTATION: SALINE HIGH SCHOOL 1 (2006), available at http:// www.atsdr.cdc.gov/hac/pha/SalineHighSchool/SalineHighSchoolHC060906.pdf (noting that "[s]everal types of air sampling, water sampling, and an epidemiological investigation were conducted" in response to "several consecutive days of apparently clustered illnesses that led to two building evacuations within one school week").
245. See generally OFFICE OF AIR QUALITY PLANNING & STANDARDS, EPA, EPA AIR POLLUTION CONTROL COST MANUAL 1-5 (2000), available at http://www.epa.gov/ttn/catc/dir1/ cs3-2ch1.pdf (noting that the majority of chemical plants utilize flare systems "to relieve emergency process upsets that require release of large volumes of gas").
246. See Right-To-Know Network, TRI Data for Huntsman Corp. O&O Facility, 1999, http:// data.rtknet.org/tri/tri.php?dbtype=C&sortp= R&facility_id=77651TXCCHHWY36&detail=3&datyp e=T&reptype= f&database=tri&reporting_year=1999&submit=GO (reporting the Huntsman C4 plant's flare-based destruction efficiency at 98%). See generally AIR PERMITS DIV., TEX. COMM'N ON ENVTL. QUALITY, AIR PERMIT TECHNICAL GUIDANCE FOR CHEMICAL SOURCES: FLARES AND VAPOR OXIDIZERS 18, 19 tbl.4 (2000), available at http://www.tceq.state.tx.us/assets/public/ permitting/air/Guidance/NewSourceReview/flares.pdf (stating that typical flare "destruction/removal efficiency" is around 98%).
247. See MCGARITY & SOKOL, supra note 59, at 6 ("It is possible for facilities routinely to experience frequent but intermittent upsets, each of which results in the release of only a relatively small quantity of a toxic pollutant. These 'persistent' intermittent hot spots can give rise to both chronic and acute toxicological concerns.").
248. See id., at 6, 37-38 (attributing intermittent emissions in some areas to processes that receive wastewater on an intermittent basis and discussing the recurrent benzene levels observed near Amoco's oil-water separator).
249. Id. at 6, 36-38.
250. Id. at 6.
251. Id.
252. See Memorandum from Allison Jenkins to Leonard Spearman, supra note 53, at 2-3 (reporting health consequences related to both acute exposure, such as headaches and nausea, and to cumulative exposure, such as increased cancer risks).
253. See Judith C. Chow et al., Will the Circle Be Unbroken: A History of the U.S. National Ambient Air Quality Standards, 57 J. AIR & WASTE MGMT. ASS'N 1151, 1156 (2007) (advocating a new EPA strategy for air monitoring that adequately accounts for hot spot exposure using "existing resources").
254. See TECH. TRANSFER NETWORK, EPA, BENZENE: HAZARD SUMMARY (2000), http://www.epa.gov/ ttn/atw/hlthef/benzene.html (last updated Feb. 4, 2008) [hereinafter BENZENE: HAZARD SUMMARY] (outlining hazards associated with acute and chronic exposure to benzene); TECH. TRANSFER NETWORK, EPA, 13,-BUTADIENE: HAZARD SUMMARY (2000), http://www.epa. gov/ttn/atw/hlthef/butadien.html (last updated Nov. 6, 2007) [hereinafter BUTADIENE: HAZARD SUMMARY] (outlining hazards associated with acute and chronic exposure to 1,3-butadiene); see also Maurizio Macaluso et al., Leukemia and Cumulative Exposure to Butadiene, Styrene and Benzene Among Workers in the Synthetic Rubber Industry, 113 TOXICOLOGY 190, 200 (1996) ("[A] parsimonious interpretation of the findings presented here is that exposure to [butadiene] produces a dose-related increase in the occurrence of leukemia among exposed workers.").
255. BENZENE: HAZARD SUMMARY, supra note 254.
256. AGENCY FOR TOXIC SUBSTANCES & DISEASE REGISTRY, U.S. DEP'T OF HEALTH & HUMAN SERVS., TOXICOLOGICAL PROFILE FOR BENZENE 307 (2007), available at http://www. atsdr.cdc.gov/toxprofiles/tp3.pdf.
257. BENZENE: HAZARD SUMMARY, supra note 254.
258. Id.
259. N.J. DEP'T OF ENVTL. PROT., UNIT RISK FACTORS FOR INHALATION 1 (2007), available at http://www.nj.gov/dep/aqpp/downloads/risk/URFs2007.pdf.
260. BUTADIENE: HAZARD SUMMARY, supra note 254.
261. Id.
262. Id.
263. Id.
264. Id.
265. N.J. DEP'T OF ENVTL. PROT., supra note 259, at 1.
266. Memorandum from Vincent Leopold to Don Thompson et al. (Jan. 3, 2005) (on file with author); Memorandum from Janet Pichette to Allen Parker, supra note 107, at 1. TCEQ's current chronic ESL for benzene is 1.4 ppb. JOSEPH T. HANEY, TEX. COMM'N ON ENVTL. QUALITY, DEVELOPMENT SUPPORT DOCUMENT: BENZENE 26 (2007), available at http://www.tceq.com/ assets/public/implementation/tox/dsd/final/benzene_71-43- 2_final_10-15-07.pdf.
267. Memorandum from Marcia Willhite to Vie Fair, supra note 175, at 2.
268. MCGARITY & SOKOL, supra note 59, at 36-37.
269. TEX. NATURAL RES. CONSERVATION COMM'N, COMMUNITY AIR TOXICS MONITORING NETWORK REPORT 2-3 (1995).
270. See Tex. Comm'n on Envtl. Quality, Air Monitoring Site Information, http://www.tceq. state.tx.us/cgi-bin/compliance/monops/site_info.pl (last modified Apr. 20, 2008) (listing air-monitoring sites by location); Dina Cappiello, Air-Testing Network Is Far from Complete, HOUS. CHRON., Mar. 2, 2005, at Al (attributing the fact that TCEQ had not purchased a new monitor since 2003 to budget constraints).
271. See TEX. COMM'N ON ENVTL. QUALITY, HOUSTON-GALVESTON-BRAZORIA REGIONAL MONITOR SUMMARY, http://www.tceq.state.tx. us/cgi-bin/compliance/monops/monitors.pl?region =12 (last modified Apr. 20, 2008) (displaying data from monitors near Texas City); TEX. COMM'N ON ENVTL. QUALITY, BEAUMONT-PORT ARTHUR REGION MONITOR SUMMARY, http://www.tceq. state.tx.us/cgi-bin/compliance/monops/monitors.pl?region=10 (last modified Apr. 20, 2008) (displaying monitor data from the Port Neches area).
272. Tex. Comm'n on Envtl. Quality, CAMS 620 Site Photographs: Texas City, http://www. tceq.state.tx.us/cgi-bin/compliance/monops/site_photo.pl?cams=620 (last modified Mar. 13, 2008) (linking to maps of the area surrounding the first Texas City monitor); Tex. Comm'n on Envtl. Quality, CAMS 147 Site Photographs: Texas City Ball Park, http://www.tceq.state.tx.us/cgi-bin/ compliance/monops/ site_photo.pl?cams=1022 (last modified Mar. 13, 2008) (linking to maps of the area surrounding the second Texas City monitor); Tex. Comm'n on Envtl. Quality, CAMS 136 Site Photographs: Port Neches, http://www.tceq.state.tx.us/cgi-bin/ compliance/monops/site_photo.pl? cams=136 (last modified Mar. 13, 2008) (linking to maps of the area surrounding the Port Neches monitor).
273. Memorandum from Charles Wheat et al. to Vic Fair, supra note 181, at 1.
274. See Lise Olsen, In Harm's Way: State Keeps Toxics Data Out of Public Eye, HOUS. CHRON., Jan. 17, 2005, at A15 (explaining that readings of vinyl chloride were lower after TCEQ moved an air monitor about a mile farther away from a PVC resin plant).
275. Victor B. Flatt, Gasping for Breath: The Administrative Flaws of Federal Hazardous Air Pollution Regulation and What We Can Learn from the States, 34 ECOLOGY L.Q. 107, 172 (2007) (acknowledging that even successful, heavily funded programs addressing hot spots rely on self-monitoring and private resources, and that "most states...could not themselves monitor all sources to ensure compliance").
276. See Exec. Order No. 12,898, 59 Fed. Reg. 5629 (Feb. 16, 1994) (ordering that to the "greatest extent" possible, federal agencies should make "achieving environmental justice part of [their] mission by identifying and addressing...disproportionately high and adverse human health or environmental effects of [their] programs, policies, and activities on minority populations and low-income populations").
277. Adverse effects suffered by members of mobile-monitoring teams include nausea, severe headaches, dizziness, and irritation of the eyes, nose, and throat. Dina Cappiello, In Harm's Way: Safeguards - Barely, HOUS. CHRON., Jan. 17, 2005, at A1.
278. SCIENCE AND JUDGMENT IN RISK ASSESSMENT, supra note 5, at 50.
279. Id.
280. SHEVLIN, supra note 102, at 1.
281. See Memorandum from Mobile Monitoring Team, Tex. Natural Res. Conservation Comm'n, to JoAnn Wiersema, Tex. Natural Res. Conservation Comm'n 2 (July 2, 1997) (on file with the Texas Law Review) (stating that unstable wind conditions often make it impossible to obtain air samples downwind of targeted industries).
282. Id.
283. Memorandum from Mobile Monitoring Team to JoAnn Wiersema, supra note 106, at 3.
284. See MCGARITY & SOKOL, supra note 59, at 35-39 (chronicling the repeated mobile-monitoring investigations that preceded enforcement action in Texas City).
285. Id.
286. Memorandum from Ronald R. Franklin to Marion L. Everhart, supra note 212, at 3.
287. Memorandum from J.E. LeBlanc to Marion L. Everhart, supra note 212, at 1.
288. See, e.g., TNRCC MARATHON REPORT, supra note 149 (reporting the results and potential enforcement consequences of an intensive investigation responding to previously observed concentrations of air toxics).
289. Memorandum from Tim Doty to JoAnn Wiersema, supra note 115, at 3.
290. Telephone Interview with Laurel Carlisle, supra note 235.
291. See 42 U.S.C. § 7603 (2000) (granting emergency powers upon "imminent and substantial endangerment to public health or welfare, or the environment").
292. See Sidney A. Shapiro & Rena Steinzor, Capture, Accountability, and Regulatory Metrics, 86 TEXAS L. REV. 1741, 1777-78 (2008) (observing the continuing problem of budget shortfalls at state environmental agencies as manifested in federal Clean Water Act implementation); Rena I. Steinzor, Devolution and the Public Health, 24 HARV. ENVTL. L. REV. 351, 377-78 (2000) (blaming funding gaps for an "untenable situation" in which state agencies can only maintain viability by writing off certain programs).
293. See Lowell Rothschild & Margaret N. Strand, Mobile Source Air Toxics: What's Known, Not Known, and What to Do About It, 21 NAT. RESOURCES & ENV'T 10, 13 (2006) (crediting the last of three lawsuits by the Sierra Club against EPA with finally bringing about residual-risk rules); Nathaniel Lord Martin, Note, The Reform of New Source Review: Toward a More Balanced Approach, 23 STAN. ENVTL. L.J. 351, 365-72, 379 (2004) (tracing the history of EPA's technology-based standards and reasoning that EPA's enforcement failures have provoked even states, along with advocacy groups, to sue EPA).
294. Interview with David Brymer, supra note 80; Telephone Interview with Torin McCoy, supra note 80.
295. Interview with David Brymer, supra note 80.
296. See Kirsten Engel & Susan Rose-Ackerman, Environmental Federalism in the United States: The Risks of Devolution, in REGULATORY COMPETITION AND ECONOMIC INTEGRATION 135, 137 (Daniel C. Esty & Damien Geradin eds., 2001) ("[S]tate governments will engage in a welfare reducing 'race to the bottom' in environmental standards for the purpose of attracting and retaining mobile industries.").
297. See id. at 136, 135-36 (asserting that "state officials trade off economic growth and environmental quality" based on shifting trends in public opinion, which frequently ignores long-term public interest and environmental risks); Steinzor, supra note 292, at 418 (concluding that the majority of states make regulatory decisions based on factors other than public health and environmental concerns).
298. See 42 U.S.C. § 7412(f)(2) (2000) (specifying that nothing in the subsection "shall be construed as affecting, or applying to the Administrator's interpretation of this section, as in effect before [November 15, 1990]").
299. See 5 U.S.C. § 706(2)(a) (2000) (subjecting agency actions to a standard of judicial review requiring the action not be arbitrary or capricious).
300. See Letter from Vic Fair to W.D. Spence, supra note 160, at 3 (reporting higher concentrations of 1,3-butadiene detected by fence-line monitors than detected by previously existing TCEQ monitors).
301. See id. ("[M]any of the higher levels detected by the fence[-]line monitoring system were measured on days for which the [TCEQ Monitor] was not collecting a sample....").
302. See id. at 2 (presenting, as one purpose of the fence-line arrangement, investigations of 1,3-butadiene sources and reduction of public exposure).
303. See supra notes 273, 295 and accompanying text.
304. E.g., TEX. HEALTH & SAFETY CODE ANN. § 382.0514 (Vernon 2001).
305. E.g., 30 TEX. ADMIN. CODE § 101.211(a) (Vernon 2007) (Tex. Comm'n on Envtl. Quality, Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements).
306. See, e.g., TEX. HEALTH & SAFETY CODE ANN. § 382.0514 (authorizing the Texas Natural Resource Conservation Commission to "require, at the expense of the permit holder and as a condition of the permit[,]...sampling and monitoring of a permitted federal source or facility").
307. 42 U.S.C. § 7661a(b)(2) (2000).
308. Id. § 7661a(b)(3)(A).
309. See Barton H. Thompson, Jr., The Continuing Innovation of Citizen Enforcement, 2000 U. ILL. L. REV. 185, 191 (arguing that "the enforcement wings of both federal and state environmental agencies are often woefully understaffed and underfunded"); David Holmberg, At Some Superfund Sites, Toxic Legacies Linger, N.Y. TIMES, Jan. 20, 2008, at LI1 (noting that money for Superfund has been "harder to come by" since a tax levied against polluting industries expired in 1995).
310. 42 U.S.C. § 7661a(b)(3)(A).
311. See ENVTL. COUNCIL OF THE STATES, STATE ENVIRONMENTAL AGENCY CONTRIBUTIONS TO ENFORCEMENT AND COMPLIANCE 34 (2001) (noting that not all states have the power to use administrative-penalty authority).
312. See Steinzor, supra note 292, at 354 (expressing doubt that there can be any "reasonable confidence that even the most aggressive and competent states are capable of supplanting the federal role of establishing a baseline for pollution control that guarantees equal and adequate protection of the public health").
313. See Jad Mouawad, No New Refineries in 29 Years, but Project Tries to Find a Way, N.Y. TIMES, May 9, 2005, at A1 (noting that a company in Arizona was attempting to build the first refinery in the United States in twenty-nine years).