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Community coated in black mist — until citizens fought back

Regulators stymied unless they could witness 'fugitive' emissions

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 Updated:

A biker rides through downtown Ponca City, Okla.

David Gilkey/NPR

PONCA CITY, Okla. — Here, in the land of big skies and broad terrain, the air pollution flowing from local industry was so palpable residents could touch it. On their hands, on their shoes, on their pets, their clothes, their cars, their windows, their grass, their doors, their children’s toys.

For more than a decade, residents of this city of 25,000 filled the local Department of Environmental Quality office with so many complaints they required 20 binders to hold. Those complaints, some coming from members of the Ponca Tribe of Indians living nearest the plant, blamed Continental Carbon Co., manufacturer of carbon black, a product used in tires, rubber and plastic goods. The plant manufactures carbon black from petroleum refinery residual oil, and the finished substance is a form of almost pure carbon, classified as a possible carcinogen.

Homeowners said a black dust cascaded from the plant and blanketed their lives. One mother insisted her child ride her bike, with training wheels, inside the house to avoid the carbon black. A teenager kept his prized Dallas Cowboys jersey wrapped in a plastic bag inside the house to avoid black smudges. Others complained their dogs’ feet turned black walking through town; when they cleaned the dogs, the tub developed a ring of black. White tennis shoes changed color.

While localized air pollution has tainted towns across the country with haze, pungent odors, and, frequently, less visible threats, few communities visited by reporters for the Center for Public Integrity’s iWatch News and NPR have been smothered like the residents of Ponca City,  two hours upstate of Oklahoma City. The small city is named after Ponca Native Americans who lived in the area prior to Oklahoma’s massive Cherokee Outlet Land Run of 1893, in which more than 100,000 settlers literally raced to stake their claims to homesteads.

Enmeshed with carbon black, the people — from Ponca Tribe members to other homeowners to City Hall itself — fought back in court. “You run your finger along something and you come up with this black crud on your finger, inside even,” said City Attorney Kevin Murphy, whose city was among the plaintiffs settling cases with the plant over the last five years.

Chemicals deemed so harmful that Congress targeted them in legislation 21 years ago persist in hundreds of communities across the United States, as iWatch News and NPR are reporting in an ongoing series of stories. These poisoned places largely have been neglected by government agencies responsible for safeguarding public health.

The quest to control toxic air pollution here tells a larger story of how people in some of the hardest-hit communities, convinced that regulators aren’t protecting them, take matters into their own hands, sometimes collecting their own air samples at factory fence lines. In Ponca City, it meant challenging the state agency, the Department of Environmental Quality, over carbon black and ultimately demanding that the courts take action.

Regulators had to see source of ‘fugitive’ dust

To this day, Houston-based Continental Carbon, Ponca City’s third largest employer, denies it caused most of the pollution. “Any issues that are identified in the plant operation are immediately addressed,” Dennis Hetu, Continental Carbon’s recently appointed president, said in an interview.

State regulators say they have been diligent and taken enforcement steps whenever necessary and allowed by their policies. “DEQ spent a considerable amount of time and resources investigating complaints regarding Continental Carbon, as reflected in our records,” Skylar McElhaney, a spokeswoman for the agency, wrote in reply to questions from iWatch News and NPR.

Yet the DEQ’s Ponca City office became literally overrun with complaints. And the state’s own policies hampered efforts to curb the pollution: For many years, DEQ files show, the agency would bring a case only if its inspectors could witness with their own eyes the “fugitive dust” leaving the plant. Evidence of black dust found on residents’ property was insufficient.

“They said as they interviewed people and took complaints, unless it happened while they were here — and it didn’t — it didn’t happen. They didn’t have the resources to take samples and to go back and test it,” recalled Richard Stone, the city’s mayor from 2003 to 2007.

For a period in 2003, records show, the agency told residents it could no longer send inspectors to visit homes each time they encountered the carbon black. There were simply too many complaints to process as the DEQ searched for a solution. Even after inspectors turned out again, complaints — about the carbon black and regulators’ response — continued to roll in.

“DEQ continues to ignore violations that contribute to the air pollution still plaguing Native Americans, farmers, and others living in the area of the company’s Ponca City plant,” the Ponca Tribe and officials with the union representing plant workers challenged the state environmental office in 2004. The DEQ’s approach, they said, “does not represent diligent enforcement, allows Continental Carbon to profit from its violations, and fails to discourage future violations.”

Many times, the state agency indeed spotted black particulate matter on residents’ property. But the cases nearly always ended there, case after case, year after year — 726 complaints logged from 1993 to 2011. Its inspectors didn’t see the fugitive dust leaving the plant;  the company said it was not at fault; and the complaint binders fattened as residents’ frustration grew.

‘A complete nightmare’

It took a string of lawsuit settlements before the wave of complaints about carbon black emissions finally began to ebb. The first two cases were filed in 2005, one by town residents, businesses and City Hall, and another by the Ponca Tribe of Indians. In 2006, the plant, while denying that it caused the pollution, settled with City Hall for $400,000 and residents for about $8 million. In 2009, again without admitting any link between its plant and the black matter, Continental Carbon Co. paid a $10.5 million settlement to the Tribe. Citizens brought a third case in 2007 against Continental Carbon, later adding refinery ConocoPhillips as a defendant. The case was settled for an undisclosed amount in 2010. A fourth case, brought by other homeowners in 2009, reached an $800,000 settlement.

It wasn’t until 2006 — well more than a decade after complaints started filling those binders — that DEQ changed its policy on fugitive dust  “from having to see it cross the property line,” as agency spokeswoman McElhaney put it, “to if there is clear evidence of fugitive dust crossing the property line, such as dust on cars.” That change came a year after the first two lawsuits were filed.

Since 1995, when Continental Carbon bought the plant from a predecessor, the agency has fined the company $25,437, and ordered it to make environmental improvements costing another $127,631.

Residents point to a striking contrast — $20 million or more in settlements versus the $25,437 in state fines — as proof they had to take matters into their own hands.

“Living with that plant was a complete nightmare,” said Karen Howe, who was among the lead plaintiffs in the Ponca Tribe’s lawsuit.

When Howe moved into a 3-bedroom house just across the fence from the plant, she was a single mother in search of an affordable place to live.

“The dust came into your home. I couldn’t open my windows on the east side of the house because it came in. It came in anyway. … It was a constant battle with trying to keep the carpet clean, the floor clean, the kids clean,” Howe said. “You couldn’t have a garden. I tried to get the kids a couple of pets, of course they were outside dogs. As soon as they were outside even three or four days you couldn’t even pet them because your hands would be all black. If they rubbed up against you it would be black on your skin and on your clothes.”

Company ‘not going to fight’ rules

The company said its testing has shown that more than 99 percent of the black matter came from other sources. Continental Carbon did not grant a request from iWatch News and NPR to release its test results, saying the information was confidential and gathered as part of its lawsuit defenses. The company also produced a video, What’s the Black Stuff.

“In most instances, the samples scientifically evaluated in recent years have consisted of mold, mildew, biofilm, minerals in the soil, rubber dust from the friction between tires and highways, and byproducts of incomplete commercial combustion activities, rather than the highly engineered carbon particles that make up carbon black,” the company wrote in a statement.

Continental Carbon blamed a bitter union lockout with fanning the flames of protest. It said it settled lawsuits to move its business forward and is responsive to problems. The company said it has spent $10 million over the last decade upgrading the plant, and that it is pursuing a better relationship with the community.

Hetu said the company puts environmental compliance behind only safety. “We replaced millions of dollars of emission controls without being required to,” Hetu said. “We’re ahead of the game. We don’t wait for them to come in and find it. We’re not going to fight those laws; we’re going to comply.”

Carbon black is elemental carbon produced by incomplete combustion or thermal decomposition of heavy petroleum products or other hydrocarbons. Its physical appearance: black, finely divided pellets or powder. According to the International Carbon Black Association, a manufacturers’ group, it is among the top 50 industrial chemicals manufactured across the globe, used in tires, rubber and plastic products, printing inks and coatings. Ninety percent is used in rubber applications.

It is classified as “possibly carcinogenic to humans” by the International Agency for Research on Cancer. “Studies have demonstrated … that regular exposure to carbon black and other poorly soluble particles may play a role in declining lung capacity,” the ICBA says. Carbon black dust, or powder, can dry the skin. “Repeat washing may be necessary to remove carbon black,” the ICBA says. Under permit, the government limits the amount of particulate matter and other toxins the plant can release in production of carbon black.

In Ponca City, emissions are lower since the legal cases were resolved, and fewer complaints have trickled in.

Still, the company remains what the EPA calls a “high priority violator” — among more than 1,600 sites the agency believes need urgent attention, EPA records show. Continental Carbon calls that designation “misleading” and said: “We understand that all carbon black producers have been designated as HPVs.”

This July, the DEQ negotiated a $4,625 fine from Continental and $13,875 in cleanups to settle alleged violations of the Oklahoma Clean Air Act.

There are still reports of carbon black contamination from some people living close to the plant. In early October, Wally and Wilma Schatz, who live about a mile west of the facility, showed an NPR reporter what they believe to be carbon black on their picnic table. Wally rubbed his fingers across the table and they were stained black afterwards.

Files of the state environmental agency, obtained by iWatch News and NPR, document multiple plant breakdowns over the years that allowed carbon dust to reach the air. In one incident in 2009, the company sent out workers with pressure sprayers to clean off a car and home close to the plant. Inspectors documented an equipment malfunction that caused carbon black to escape the plant.

“It was a constant cleanup. It was bleach and water. It was always, bleach and water,” said Jonathan Thomas, a father of three and transit director for the Ponca Tribe of Indians. “You couldn’t have white clothes. You just couldn’t have nothing nice.”

Scotty Simpson Jr., a member of the Ponca Tribe business committee, said he grew up constantly aware of the slimy black substance. He’d wash his 1997 white Ford truck, only to find it dusted with black the next day. He learned to keep extra care of his valuables.

Simpson grew up a diehard Dallas Cowboys fan, proud owner of a #22 jersey — Hall of Fame running back Emmitt Smith. He kept the jersey in a plastic bag inside his house to protect it. When he went out, he was careful not to touch anything.

“Once you got carbon black on it, it was done,” Simpson said.

 20 binders of complaints

The complaints — spelled out in the 20 binders, lawsuits, state inspection reports and interviews — speak of a constant misery in the battle with carbon black. And they show how, time and again, the state regulatory agency closed the books with no sanctions.

“They just really ignored us, and got mad when we told them they were ignoring us,” said Jesse Beck, environmental manager for the Ponca Tribe of Indians.

July 1, 1995: A woman complains of black powdery substance on her property, and the DEQ inspector finds a fine black powdery solid on the sides of the metal shop building, a motorcycle trailer, outdoor furniture and toys. The inspector sees no emissions from the plant, and the company reports no recent “reportable excess emissions,” according to the inspector. The case is closed.

September 20, 1997: A caller complains carbon black was dumped in the night, stating, “It is in the house, and the floor is black,” state files show. An inspector said the company blamed winds for sending fugitive dust into the air. “I was unable to confirm or refute this statement,” the state concludes. “We have, therefore, closed this complaint file.”

October 14, 2002: A resident reports, “Carbon black is everywhere,” and the inspector finds fine black powdery solids on the fence and lawn furniture. “I saw no emissions or fugitive dust … at time of investigation,” the inspector records in the file. “No violations were observed,” the agency writes back to the resident. “Therefore, we consider the complaint resolved.”

November 2002: A resident says “carbon black dust is almost continuous.” The inspector reports no visible emissions and closes the case.

 May 29, 2003: Bud Vance, a longtime resident who would file many complaints, says he cleaned his property the night before — only to find the picnic tables and other outdoor items covered with carbon black in the morning. “Black dust was even inside the house.”

By that June, DEQ was so backlogged chasing complaints it decided to stop visiting homes.

“I am still in the process of looking into what, if anything, this agency can and should do under the law concerning the recurring carbon black dust complaints. Because of this, you should not expect the same course of action that you are accustomed to,” Jimmy D. Givens, the agency’s general counsel, told Vance and other residents who had filed complaints.

“Until we reach a final conclusion about what can and should be done, there is no real purpose to be served by repeated contacts and visits to discuss and observe the same problem.”

Meantime, residents are “welcome to continue to let us know when you have a problem … but just be aware that the routine of automatically sending someone out has changed.”

The complaints continued to pour in.

June 10, 2003: A radio station technician, working on a tower, asks if someone was spray painting. He reported that “he was being ‘dusted’ with very fine black powder,” state files show. The caller says one of the three full-time station employees is often sick and asks “if the powder is detrimental to a person’s health and if it could be connected with the ill employee.”

More than two months later, the department’s complaints coordinator, Lynne Moss, writes back. “We were not able to verify a fugitive dust violation during any of the inspections of the facility. However, any particulate matter, including carbon black, has the potential to aggravate individuals with pre-existing respiratory conditions.”

November 24, 2003: A resident wakes up on a Saturday morning to carbon black all over the property. “I wiped a table with my finger, and it was streaked with black dust,” writes an inspector. But again, no enforcement action follows. “Although my staff observed black particulate matter on your property, they could not identify any violations at Continental Carbon as being the source of the matter,” writes back Rick Austin, environmental programs manager. “Therefore, I am closing your complaint. Please feel free to contact this office if we can be of further assistance.”

January 5, 2004: Vance says he noticed a strange “taste” in the air at 5:30 on Saturday evening and that when he got up the next day, “there was lots of black dust all over everything again.”

Ten days later, the DEQ sends a warning letter to Continental Carbon, reporting that “material that appeared to be carbon black had settled off your property” during neighborhood inspections. “Also,” the state wrote, “spilled and/or loose carbon black material at your plant site had not been cleaned up in a timely manner.”

Soon, the state informs Vance that the company has “implemented housekeeping practices that should prevent future problems. … Since Continental Carbon has corrected the violations, we are closing your complaint.”

June 24, 2004: A resident “said her granddaughter’s feet were black from walking outside.” The inspector finds black particulate dust on the front porch, porch rails and a vehicle parked under a carport. But the company reports no upsets. Another closed case.

June 28, 2004: A caller reports carbon black in the house, in the car, all over. She says her pet’s feet turn black outside. An inspector finds black particulate matter on the porch railing and on the vehicle. The company says no upsets took place, and the state said Continental Carbon has implemented “additional procedures to prevent fugitive dust from leaving the property.” The case is closed.

Files document plant breakdowns

Yet Oklahoma files from that year, 2004, spotlight breakdowns in housekeeping at Continental Carbon that, the reports say, allowed carbon black to reach the air. Simultaneously, DEQ files revealed, 2004 and 2005 produced the largest crop of resident complaints.

On March 9, 2004, a state administrative compliance order cited “piles of newly spilled carbon black” near a railroad track, and other piles gathered in rail car storage and loading areas during an inspection the previous October. “By allowing carbon black to become airborne and pollute the air of the state,” the Oklahoma DEQ said, the company violated state pollution control laws.

Another state report that fall documented piles of exposed carbon black unearthed during inspections. A DEQ inspection August 20, 2004 found five accumulations of carbon black “that were exposed to the ambient air and were not in the process of being cleaned up.” A visit six days later found a pile of particulate material that had drifted near the pelletizer building. “There were no personnel cleaning up the pile.” Four days later, during an inspection August 30, the state found three accumulations of carbon black exposed to ambient air and not cleaned up.

More visits in September found more piles of carbon black, exposed to the elements.

Those findings led to a November 2004 consent decree between the state and company in which Continental Carbon agreed to new measures to identify and clean up leaks and spills that could produce fugitive dust and to pay a $5,000 fine. Continental Carbon did not admit fault, but Oklahoma officials “identified a long ongoing condition of air pollution,” state records say.

The complaints continued flowing in.

August 18, 2004: A resident says she put a plastic cake plate on the front porch three days earlier — “and the cake plate is covered with carbon black today.” An inspector finds black particulate matter covering the outdoor furniture, but spots no excess plant emissions. “Please contact this office if we can be of further assistance,” he writes.

August 25, 2004: Resident Glenda Richardson says she walks her dogs every morning “and every morning have to wash the dogs’ feet in the bathtub to scrub the carbon black off. … Then you have to scrub the tub to get it off the tub.” The inspector finds black particulate matter on the house siding, but the company reports no emissions, and the agency finds housekeeping in order. On September 16, 2004, Richardson is told the complaint file is closed.

Others say carbon black is in the swimming pool, on the screened in porch, all over.

The Tribe takes its case to court

Finally, residents had had enough.

On January 31, 2005, the city and several residents sued the plant alleging the carbon black dust particles damaged their property, including government-owned buildings. “Since acquiring the plant in 1995, the defendants have steadily increased the level of carbon black production,” the suit contended, “bringing the production of the plant to over 300 million pounds of carbon black annually.”

The substance, the suit said, “is black and sticky. Carbon black is very difficult to wipe or clean off of human skin and it can be impossible to clean off of objects such as buildings, homes, cars, boats and clothing.” This “nuisance dust” can “travel long distances in natural air currents,” the suit said.

The plaintiffs contended the plant hid its level of pollution, “manipulating test results and plant monitoring in order to claim that their plant is not the cause of this black dust nuisance.”

Stone, the mayor at the time, said filing suit against a big employer was not politically popular with local industry. “They didn’t think we ought to sue or join in the lawsuit against one of our major employers,” Stone said. “It didn’t look like a real good thing to do politically but I felt we ought to answer the complaints of the citizens of the community who were being damaged.” Continental Carbon and its parent, the China Synthetic Rubber Corp., denied the allegations and said they weren’t the responsible parties but contended the pollution was triggered by other sources including a longstanding city refinery operated by ConocoPhillips. The refinery said it was not at fault.

On April 20, 2005 came the next case, with the Tribe suing Continental Carbon and its parent company, which since combining in 1995 had become the fourth-largest producers of carbon black in the world. “The Ponca people wish to bring about a healing of the air, land, and water in what has become the Tribal homeland,” according to a later filing in the case.

The suit sought a halt to the pollution, compensation for those impacted and “future medical monitoring for those who have been exposed to the pollution from the facility.”

“Vast quantities of pollutants — including carbon black — have been and continue to be released from the facility into the environment,” the suit said. These pollutants “have continuously and intermittently worsened over time, and have worsened to the extent that they interfere with the plaintiffs’ abilities to use their properties.”

Parent China Synthetic “denies that it releases pollutants from the facility.”

Over the years, residents at times complained of breathing problems linked to the pollution. “It is so thick that you can hardly breathe,” one resident complained in 2000.

Continental Carbon acknowledged “some impacts to neighbors living very near the plant” but denied it caused any harm to the tribe or other plaintiffs, and said no evidence reveals health impacts to residents or workers. As the cases wound through the courts, the state environmental agency found continuing problems with plant operations amid unannounced inspections. A visit in December 2005 found “five open trash boxes with loose carbon black in them,” state records show.

In January 2006, an inspector reported, “On the east side of Unit #4 there were pills of carbon black falling out of the air.”

Two weeks later, an inspector spotted “a mix of carbon black and gas leaking from a pipe” at the plant. “A crew was in the process of trying to patch the leak with a sock around the pipe,” said the report from the DEQ’s Air Quality Division.

In 2007, after citing excess emissions, the state closed its largest case against Continental Carbon. The company agreed to pay a $15,812 fine and installed $113,756 worth of environmental cleanup projects.

Two years later, Ponca Tribe plaintiffs secured a settlement many times greater, $10.5 million. The company agreed to instantly check all complaints and send material for testing.

“Continental Carbon Company is demonstrating strong character and ethical behavior in settling these lawsuits. While we strongly disagree with the claims of the plaintiffs … settling these cases allows our company to focus on managing our business in a highly competitive environment,” said a company statement issued at the time of the settlement.

In 2009, the year of settlement, plant emissions reported to EPA dropped drastically, records show.

The Ponca Nation received a $320,595 check, and individual homeowners thousands depending upon the size of their land and their role in the case. Lawyers, who logged $1.8 million in expenses and 15,000 hours, received 40 percent.

The largest individual payouts went to 11 homeowners living closest to the plant, with the company spending $300,000 each to move them to new homes.

That ground today is covered with grass.

“I almost blame the government for allowing those homes to even be there. They should never have been built there,” said tribe member and plaintiff Amos Hinton.

Hinton, a descendant of  Ponca Chief Standing Buffalo, recalls spotting black residue even at the gravesite. “My interest was to stop the polluting on my family’s land — the desecration of this man’s burial site,” Hinton said.