Poisoned Places from The Center for Public Integrity

Many Americans left behind in the quest for cleaner air

2013-04-19T14:36:05-04:00

For all of her 62 years, Lois Dorsey has lived five blocks from a mass of petrochemical plants in Baton Rouge. She worries about the health of people in her life: A 15-year-old granddaughter, recovering from bone cancer. A 59-year-old sister, a nonsmoker, felled by lung cancer. Neighbors with asthma and cancer.

She's complained to the government about powerful odors and occasional, window-rattling explosions — to no avail, she says. Pollution from the plants — including benzene and nickel, both human carcinogens, and hydrochloric acid, a lung irritant — continues.

“If anything," said Dorsey, herself a uterine cancer survivor, "it’s gotten worse."

Americans might expect the government to protect them from unsafe air. That hasn’t happened. Insidious forms of toxic air pollution — deemed so harmful to human health that a Democratic Congress and a Republican president sought to bring emissions under control more than two decades ago — persist in hundreds of communities across the United States, an investigation by the Center for Public Integrity’s iWatch News and NPR shows.

Congress targeted nearly 200 chemicals in 1990 amendments to the Clean Air Act, which the first Bush administration promised would lead to sharp reductions in cancer, birth defects and other serious ailments. But the agencies that were supposed to protect the public instead have left millions of people from California to Maine exposed to known risks — sometimes for years.

Records, some previously undisclosed, show the extent to which Washington is aware of the failure of states and the U.S. Environmental Protection Agency to crack down on localized sources of hazardous airborne chemicals, known as air toxics, even when violations may have continued for years. According to the latest available data, the EPA knows of more than 1,600 “high priority violators” of the Clean Air Act — sites that regulators believe need urgent attention.

About a quarter of these high priority violators appear on an internal EPA “watch list” that includes serious or chronic polluters that have faced no formal enforcement action for nine months or more. Until now, the list has not been made public. The latest version, dated September 2011, shows the names and locations of 383 industrial, commercial, military and municipal facilities, from oil refineries and steel mills to pharmaceutical manufacturers, incinerators and cement kilns. Many of these facilities bombard communities in Texas, Iowa, New York, Arizona, Oklahoma and other states with solvents that can cause cancer, metals that can cause brain damage, or other contaminants.

“There are still places in the country that are overburdened with toxic pollution,” Cynthia Giles, the EPA’s assistant administrator for enforcement and compliance assurance, acknowledged in an interview with iWatch News and NPR.

In Houston, the blue-collar, primarily Latino neighborhood of Manchester lies in the bull’s eye of benzene emissions from the nation’s biggest petrochemical complex. Doctors diagnosed Valentin Marroquin with acute lymphocytic leukemia eight years ago, at age 6. While linking illness to toxic exposure can be difficult, Valentin’s mother, Rosario, doubts he got sick by chance. The ailment has been associated with benzene, and researchers have found elevated rates of childhood leukemia in Houston neighborhoods – including Manchester – with high levels of the chemical in the air. Refineries near Manchester have reported emitting hundreds of thousands of pounds of benzene over the last decade.

“When Valentin was a toddler,” his mother said, “he was running around with all this benzene falling on him.” The teenager, while in remission, lives with worry that his cancer will come back with full fury.

Almost every kind of community is afflicted by air toxics: Middle-class suburbs. Rural patches of the Bible belt. Urban corridors.

In Muscatine, Iowa, pungent haze from a corn processing plant hangs over an otherwise scenic stretch of the Mississippi River. Ash and bits of corn accumulate on houses and cars. For years, state regulators failed to notice what an inspector later characterized as a façade: The factory, while appearing to comply with air pollution rules, exposed nearby residents to a toxic byproduct, state records show. Finally, the EPA raided the plant in late 2009 as part of an ongoing criminal investigation.

In Tonawanda, N.Y., the producer of a key ingredient for iron foundries also violated air pollution rules for years and grossly underreported emissions of benzene and other dangerous compounds into the community, federal documents show. There, too, the EPA eventually stepped in, elbowing aside sluggish state enforcers. A continuing criminal inquiry led to indictments in 2009 alleging violations of the Clean Air Act.

In Hayden, Ariz., the federal government forced a century-old copper smelter to excavate the yards of nearly 300 residents because the soil was contaminated with arsenic and lead. Yet the state still allows discharges into the air of the same metals, which can cause cancer and neurological damage. Some citizens believe generations have been — and will continue to be — poisoned. The state views the smelter as only a minor source of hazardous air pollutants.

In Ponca City, Okla., black mist from a factory that makes a strengthening agent for tires settled on people’s clothes, pets, cars and lawns for decades — and still occasionally falls. Citizen complaints about a lung irritant and possible carcinogen filled 20 binders, but the state environmental agency did little. Emissions declined only after the city and some residents sued the company and won almost $20 million in settlements.

This reality of America’s poisoned places has been eclipsed by the prevailing political narrative. While some business and political leaders, including President Obama, increasingly warn of the impacts of overregulation on the foundering economy, many ordinary Americans face health risks from hazards that could have been limited through better policing.

To be sure, many Americans can breathe easier because of the Clean Air Act. But its intended benefits have eluded many others. As of August nearly 300 of the roughly 1,600 high priority violators had held this dubious distinction for at least a decade, EPA enforcement data show — evidence of a continuing failure by regulatory agencies to keep up.

Within the bureaucracy, the enforcement lapses are hardly a secret. A 2009 report by the EPA’s inspector general found that “in many instances EPA and States are not addressing high priority violations … in a timely manner,” thereby allowing “continued emissions from facilities [that] may result in significant environmental and public health impacts, deterrence efforts being undermined, and unfair economic benefits being created.”

Specifically, the inspector general found that the EPA rarely took over from the states cases involving high priority violators – even though some cases had dragged on for a year and a half or more.

Rep. Henry Waxman, D-Calif., a co-author of the 1990 amendments, said he is troubled by the severe problems that linger in parts of the country.

“I don't think it's a great deal of comfort to tell somebody whose kids may develop brain damage or the adults in the neighborhood who may get cancer that, overall, we’re reducing toxic air pollutants,” Waxman said. “It doesn't help them. What will help them is that the industries that are in their area actually control the pollution and stop poisoning the people.”

EPA acknowledges ‘patchwork of protection’

Two reasons for the government’s inability to muscle habitual polluters into line: Scant resources and politics.

The Clean Air Act delegated enforcement duties to the states, where shrinking budgets have led to less oversight. While the act allowed the federal government to subsidize up to 60 percent of states’ compliance activities, Washington has contributed far less over the past 15 or so years. Today it kicks in only about 25 percent. That translates to a loss of billions of dollars that could have reduced the number of people breathing bad air.

States are getting about $200 million a year in grants from the federal government, said Bill Becker, executive director of the National Association of Clean Air Agencies, which represents more than 200 state, territorial and local pollution control agencies. By Becker’s calculation, the figure should be closer to $700 million. Result: scaled-back enforcement. “We are treading water,” he said.

Michigan could serve as a poster child for the consequences of the budget squeeze. The air division of the state environmental agency has lost about one-fifth of its staff in the past six years, slowing scrutiny of polluters. “Certain things don’t get done as quickly as we would like,” said Vince Hellwig, who heads the division. Annual inspections, for example, aren’t being finished on time.

The EPA, for its part, sometimes is disinclined to wrest policing authority from the states. Eric Schaeffer, a former top enforcement official at the agency, recalls hearing “bitter, bitter complaints” from state officials resentful of planned federal enforcement actions. “It can get pretty tedious,” said Schaeffer, now executive director of the Environmental Integrity Project, a nonprofit group that litigates against polluters.

Politics comes into play, too. In Indiana, Gov. Mitch Daniels, a Republican and former director of the Office of Management and Budget under George W. Bush, has emphasized economic growth. He says the EPA should be renamed the “Employment Prevention Agency.”

Daniels has cultivated relationships with industry leaders, including the CEO of ArcelorMittal, owner of a steel mill near Gary, Ind., that is on the EPA’s watch list.

In 2005, Daniels put a former manager at the mill — when it was owned by Bethlehem Steel — in charge of the Indiana Department of Environmental Management. Under Daniels’s appointee, Thomas Easterly, the department eliminated funding for local air pollution control agencies and made enforcement changes that environmental groups fear could make some cases harder to pursue. The agency said none of the changes threatens public health. “Tom Easterly has been the commissioner for seven years,” Daniels’s office said in a statement. “We do not have concerns.”

In a tough economy, such moves draw less criticism — and, indeed, appeal to Americans wary of a large, unresponsive government. “People here are more worried about surviving day to day and don’t even notice this happening behind their backs,” said Leonard White, a resident of Gary, an industrial city on Lake Michigan beset by six high priority violators within a 15-mile radius.

EPA officials say that while substantial progress has been made under the 1990 Clean Air Act amendments, the results have been uneven. “We’re trying to fill that patchwork of protection that people deserve and expect,” said Gina McCarthy, the EPA’s assistant administrator for air and climate.

It’s not been easy. From the start, the EPA fell behind on issuing air toxics rules for swaths of industries — chemical manufacturers, paint-stripping operations, tire makers. When the rules did come out, they were often branded as weak by environmentalists, who went to court in search of relief. A number of rules were skewered by judges and tossed back to the agency for retooling.

Now, as the EPA tries to address the last major sources of hazardous air pollution — coal-fired power plants, industrial boilers, incinerators and cement plants — it’s encountering headwinds in Congress, mainly in the Republican-dominated House.

The 1990 amendments sought to crack down on sources of 189 chemicals that pour from stacks, leak from pipes and storage tanks and sometimes take the form of “fugitive emissions” from valves and seals. Emissions of the 187 listed chemicals (two were dropped from the original list) fell by 40 percent from 1990 to 2005, according to the EPA.

But this is little consolation to people in communities such as Whiting, Ind. — among the many pockets of enduring pollution where citizens complain that their government has abandoned them. “I gave up on trying to make a difference,” said Paul Myers, who lives within a half-mile of a steel mill and a refinery in Whiting, just east of Chicago, and has spoken out against emissions from the plants. “The spirit of America is alive and well. It’s just not alive and well here.”

Gaming the honor system

The risks to Americans from air toxics may be even greater than EPA records suggest. One reason is a practice of relying on infrequent air monitoring that allows polluters to estimate chemical emissions and submit those estimates to the EPA’s Toxics Release Inventory, a widely used database hailed on its 25th anniversary last month for the way it opens a window for communities on the hazards in their midst. “Everyone has a right to know if danger is lurking in their own backyard,” Sen. Frank Lautenberg, D-N.J., one of the inventory’s prime backers, noted on the anniversary.

The public — and enforcers — may take these self-reported numbers as gospel. They aren’t. Voluntary reporting and the inventory can yield a picture so flawed it dramatically understates the actual amount of pollution. And with poor data, enforcers are hampered from taking meaningful steps.

“What can you do in an enforcement context when the underlying structure of getting the numbers, recording them accurately and reporting them is rotten?” said Schaeffer, who headed the EPA’s Office of Civil Enforcement. “You’re basically building cars without speedometers … and leaving people to guess what the emissions might be.” Studies have documented discrepancies between what’s reported and what’s emitted — sometimes, Schaeffer said, by a factor of 10 or more.

While illegal acts get more attention — and, enforcement officials say, are easier to prosecute — much of the toxic pollution that’s disgorged is legal, sanctioned by the very agencies entrusted to safeguard public health.

Illicit pollution can be the product of poor operations or maintenance. Some polluters save their dirtiest activities for nights and weekends, when regulators aren’t around to respond to complaints. In Muscatine, Iowa, a corn processing plant burned low-sulfur coal when the wind was blowing toward a state-operated monitor. That meant the monitor would detect less of a pollutant, sulfur dioxide, and the plant could avoid added scrutiny, inspection reports and other state records show.

The plant’s owner, Grain Processing Corp., does not dispute switching types of coal when the wind was blowing toward the monitor — but says it acted out of concern for public health. “People assumed that something was being hidden or we were trying to get out of regulation,” said the company's environmental director, Mick Durham, “but that’s not the case at all.”

A sizable amount of pollution requires no chicanery. Under a state-run, federally sanctioned permitting process, substantial toxic emissions sometimes are allowed. Permits don’t always require monitoring or include other protections. In effect, companies obtain licenses to pollute.

Frustration with this system in 2005 prompted two lawyers representing the predominantly African-American town of Mossville, La. — near the petrochemical manufacturing center of Lake Charles — to file an environmental racism complaint with what they felt was the only venue left to them: an international human rights commission. The commission, part of the Organization of American States, accepted the complaint last year — the first of its type to go forward against the United States. The case is pending.

“Every day, Mossville residents breathe toxic chemicals dumped on them by 14 industrial facilities," said one of the lawyers, Monique Harden, who is seeking relocation and medical treatment for her clients. “How is that possible? Well, it’s legal.”

With insufficient resources, regulators across the country have come to depend on an honor system. Companies are expected to volunteer information about their emissions, including when they have exceeded allowable limits. Investigators are finding that cases such as Grain Processing Corp. in Muscatine aren’t unique.

"Attempts to game the honor system are our bread and butter," said Mike Fisher, deputy director of the EPA's office of criminal enforcement, a detective and prosecutorial unit that has some 120 open Clean Air Act cases. Fisher estimates that about 90 of these cases involve efforts by polluters to mislead regulators.

In October, for example, Houston-based Pelican Refining Co. pleaded guilty to felony violations of the Clean Air Act and agreed to pay $12 million in penalties for what the EPA called “numerous unsafe operating conditions” at Pelican’s Lake Charles refinery. Among other things, Pelican admitted in court documents that a monitoring system designed to detect unsafe levels of hydrogen sulfide, a potentially lethal gas, wasn’t working properly, and that it had bypassed a “scrubber” designed to remove the gas from the atmosphere.

‘What am I breathing?’

Some of the chemicals covered by the 1990 Clean Air Act amendments can be seen, smelled or felt. Others are undetectable to the average person. Some accumulate in soil, water and food.

A few of the compounds are familiar (asbestos, lead) but many are obscure, with unpronounceable names like 2,3,7,8-Tetrachlorodibenzo-p-dioxin. All are destructive. Congress specified them in the amendments because they can cause cancer, birth defects, brain impairment, respiratory disease or other serious maladies; many of these conditions don’t appear until years or decades after exposure and aren’t easily tied to a particular chemical or family of chemicals.

When it comes to environmental health, precise cause-and-effect can be hard to determine. But the anxiety stirred by toxic chemicals, especially among parents, is considerable — in some cases worse than the physiological damage they inflict. “It’s awful,” said Tonya Pilch, one of several residents of Fernandina Beach, Fla., who complain about emissions from a pulp mill. “I don’t know what it lets off, but you can taste it. There’s a mist you can see in the air when it’s really bad. I wonder, what am I breathing?”

Under the Clean Air Act, the EPA sets limits for soot and a few ubiquitous pollutants, such as sulfur dioxide. If higher levels are detected, stricter pollution controls may be required.

For a city like Gary, this means that steel mills, power plants and an oil refinery in the area must hold down emissions of fine particles that can cause respiratory problems and chemicals that can form smog. But there are no comparable restrictions on most air toxics, like manganese, which can affect the nervous system.

The EPA has set compound-specific standards for only seven of the hundreds of air toxics: asbestos, benzene, beryllium, inorganic arsenic, mercury, radionuclides and vinyl chloride.

The others? Covered by the sorts of broad, sector-wide rules that have been criticized by the courts.

In Gary, the dark haze from steel mills and power plants that once hovered over the community has lessened. Still, some worry about the unseen. “It could be a clear day, and it’s toxic as hell,” said Lin Kaatz Chary, a former steel mill worker and now a public health advocate. According to 2005 EPA data — the most recent available — people living in some neighborhoods in the Gary area were among the 5 percent of Americans facing the highest risks of cancer from hazardous air pollutants.

While tangible effects of emissions can be hard to measure, shards of circumstantial evidence sometimes emerge. In December, for instance, a study by the Texas Department of State Health Services concluded that the prevalence of birth defects in a three-county area that includes Corpus Christi — home to several large oil refineries, one convicted of criminal Clean Air Act violations in 2007 — was 74 percent higher than the rest of the state.

A 2010 study by researchers at the University of Texas School of Public Health found that women living in Houston-area census tracts with the highest benzene levels were more than twice as likely to have children with spina bifida than women living in areas with lower levels. And a 2008 study by researchers with the same institution found that benzene-saturated census tracts in the Houston area had elevated rates of childhood leukemia.

Such studies don’t prove that toxic emissions are harming children in Corpus Christi and Houston. But the law says that such proof isn’t required. Congress told the EPA to zero in on 189 chemicals — by and large, the worst of the worst — because of their well-documented ability to sicken and kill people.

Broken promises and the ‘watch list’

President George H.W. Bush couldn’t have made the goal any clearer when he signed the Clean Air Act amendments into law in November 1990, declaring “my determination that each and every American shall breathe clean air.” His EPA administrator, William K. Reilly, predicted that “30 million tons of toxic chemicals will be prevented from fouling the air every year” and that “as a result, air toxics risk will be slashed by three-quarters, and health problems will be reduced significantly, including cancer risk, respiratory disease, heart ailments and reproductive disorders.”

But the law’s promise remains unfulfilled. iWatch News and NPR sought to determine the scope of the air toxics threat by analyzing federal and state data, reviewing documents and doing ground-level reporting in 10 states. One of the documents was the Clean Air Act enforcement watch list, which as of September included 383 facilities. iWatch News and NPR obtained it by filing a Freedom of Information Act request. The news organizations earlier had obtained the July version of the list, which included 416 facilities.

According to a 2008 EPA report, the watch list reflects “recidivist and chronically noncomplying facilities whose violations have not been formally addressed by either the state or EPA.”A 2009 report by the EPA’s inspector general put it similarly: The list tracks “facilities with serious or chronic violations of environmental laws but with no formal enforcement response.” EPA officials said facilities on the list have not been subject to enforcement actions for at least 270 days following the discovery of a violation — a delay of nine months.

Most facilities on the list, which is updated monthly, are classified as high priority violators. Among the criteria for becoming a high priority violator: Excessive emissions of air toxics; violation of a state or federal order; and monitoring or recordkeeping deficiencies that “substantially interfere with enforcement.”

Not every high priority violator has been formally found to have broken rules. A plant can be considered a high priority violator even if its owner has reached a court settlement with the EPA, which wants to make sure all terms of the agreement are met. “You come off the [high priority violator] list when all the actions under the settlement have been completed,” said a senior EPA enforcement official, who asked not to be identified because he is not authorized to speak for the agency. “It takes time for the [required] work to be completed. We don’t trust these companies fully and want to maintain federal court supervision.”

Reporters with iWatch News and NPR attempted to contact representatives of all facilities on the July and September versions of the watch list. Most didn’t reply or declined to comment. Some of those who did respond seemed puzzled by their plants’ inclusion. Bill Day, a spokesman for Valero Energy Corp., which had seven sites on the September list, wrote in an email that the company’s facilities “operate under permits, and we work with federal, state and local regulators to ensure compliance with those permits. All issues are remedied as quickly as possible.”

Charles Drevna, president of the National Petrochemical & Refiners Association, wrote in an emailed statement, “In the short time we have had to examine the list of fuel and petrochemical manufacturing facilities on the EPA Watch List, we and our members have found multiple instances of outdated and inaccurate information, along with failures to note that reported violations have already been resolved.”

Officials in some states also cautioned against reading too much into the EPA data. “Just because [companies are] on the list doesn’t mean we’re not actively working on them and pursuing a remedy to the concern,” said Brad Frost, a spokesman for the Illinois Environmental Protection Agency. Illinois had 37 facilities on the list as of September; only Ohio and Texas had more.

Not every facility on the list may be a serious or chronic offender. While the EPA’s own documents describe the list that way, agency spokesman Larry Jackson said in an email that facilities may appear on the list for other reasons. For instance, enforcement officials may be tracking a polluter’s compliance with a court order. A company in negotiations with authorities also might be on the list. In other instances, violations may have been alleged but not proven. There also may be data errors — for example, a state agency’s failure to report an enforcement action to the EPA.

Jackson emphasized that the watch list “does not identify which violations may pose the greatest risk to public health or the environment.”

Even so, the analysis of EPA enforcement records by iWatch News shows that 95 percent of the facilities on the September list were classified as high priority violators.

The reason each facility is on the list — spelled out on the EPA’s internal version — is closely guarded by the agency. The EPA declined to disclose these details to iWatch News and NPR, citing a Freedom of Information Act exemption protecting law enforcement techniques and procedures.

Grant Nakayama, EPA enforcement chief under George W. Bush, said the list has been kept secret in part because of "violators out there that are really interested in gaming the system, beating the system, and anything that gives them forewarning, I think, would not be helpful."

While air toxics are concentrated in certain industries — such as oil refining, steel manufacturing, and coal-fired power generation — the watch list includes a broad cross-section of companies. Six industries account for more than one-third of the facilities: oil refining; electric power generation and distribution; organic chemical manufacturing; steel manufacturing; solid waste disposal; and crude oil and natural gas extraction.

More than half of the facilities on the September list are located in six states: Ohio, Texas, Illinois, Louisiana, Wisconsin and Indiana. About two-thirds are large enough to report to the Toxics Release Inventory; collectively, they admitted putting out some 34 million pounds of hazardous air pollutants in 2009.

Among them is the Huntsman Corp.’s chemical plant in Port Neches, Texas, owned by the family of Republican presidential candidate and former Utah governor and U.S. ambassador to China Jon Huntsman. Data reported by the company to the EPA show that the plant discharged nearly 300,000 pounds of chemicals into the air in 2009, including 142,000 pounds of substances on the hazardous air pollutant list. It’s recorded 27 separate high priority violations since February 2002, EPA data show. Neither Texas nor company officials responded to requests for comment.

EPA ‘still playing catch-up’

Many more polluters generate prodigious quantities of air toxics than are on the EPA watch list. All told, in 2009 the roughly 13,600 facilities required to report to the Toxics Release Inventory said they emitted at least 600 million pounds of hazardous air pollutants.

Some communities are in the crosshairs of multiple sources of pollution. Eight plants in Channahon, Ill. — a middle-class town of 12,500 about 50 miles southwest of Chicago — reported releasing some 644,000 pounds of air pollutants, including 163,000 pounds of toxics, in 2009.

Tammy Thompson, who lived in Channahon from 1998 to 2008, said the air got “progressively worse” beginning around 2002. “The fumes would come into your home,” she said. “My husband and daughter and I would wake up coughing and gagging in the middle of the night.”

Thompson said she complained repeatedly to the Illinois Environmental Protection Agency but saw no improvement. Prompted by an inquiry from then-Sen. Barack Obama, an official with the U.S. EPA in Chicago explained in a 2007 letter to Thompson that the state had “primary responsibility” for enforcing the Clean Air Act and that regional monitoring showed that “air quality in the area where you live is generally good.”

Convinced that neither the state nor the federal government was going to protect them, Thompson and her family left Channahon three years ago and now live 20 miles away. “We took a $40,000-plus hit on our home just to get the heck out of there,” Thompson said.

A spokeswoman for the Illinois Environmental Protection Agency, in an emailed statement, wrote that the agency takes citizen complaints seriously and has inspected “all potential Channahon odor sources.” Two refineries that have been targets of residents’ ire are operating within the limits of their air permits, the spokeswoman said.

EPA officials generally tout their progress in cutting emissions nationwide — not the communities left behind. Giles, the EPA’s assistant administrator for enforcement, said the agency’s actions are “removing millions of tons of pollution from the air and water every year.” In the past 12 years, spokesman Jackson said, the EPA has reached court settlements with — or taken administrative actions against — 106 refineries; 242 units at 75 power plants; and 88 ethanol plants, among other polluters. Over a 20-year period beginning in 1989, the agency opened more than 1,600 criminal Clean Air Act cases, Jackson said.

But McCarthy, the EPA’s assistant administrator for air, acknowledged that “we’re still playing catch up” with the requirements of the Clean Air Act amendments.

EPA administrator Lisa Jackson declined multiple requests to be interviewed for this story.

Citizens fight back: ‘Bucket tests’ and lawsuits

With government unwilling or unable to pursue polluters with more zeal, citizens in some of the hardest-hit communities have taken matters into their own hands, collecting air samples at factory fence lines and hiring lawyers to pursue intractable polluters in court.

In Tonawanda, N.Y., a suburb of Buffalo, residents fed up with chemical emissions from a plant owned by Tonawanda Coke Corp. began taking air samples outside the plant using specially equipped buckets. The sampling put federal investigators on the path to finding that the plant’s benzene output was 30 times higher than what it had reported to the EPA, agency documents show.

“It burns your eyes. It burns your throat. It’s just bad,” said Jeani Thomson, who has lived near the plant for 30 years and has had an array of illnesses. “I have everything under the sun that can possibly be wrong with a person and still be walking around. I have eye issues … I have had three different cancers. I have one lung. Half a stomach.”

In Ponca City, Okla., homes were invaded by fine, black dust from the Continental Carbon plant until the city and residents, including members of the Ponca Tribe, filed a string of lawsuits that brought multi-million dollar settlements and prompted state regulators to rewrite their rules. The company blamed other sources for the pollution, but declined to release its test results to iWatch News and NPR.

“Living with that plant was a complete nightmare,” said tribe member Karen Howe. “The dust came into your home. … 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.”

In the late 1990s, several hundred residents of Hayden, Ariz., sued Asarco, owner of one of the nation’s few remaining copper smelters, hoping to get enough money to move away from the arsenic- and lead-contaminated town east of Phoenix. The company entered bankruptcy some years later and avoided big payouts. People are stuck, and the pollution continues.

Mary Corona, 53, has lived in Hayden since birth and said she suffers from constant, throbbing pain, as well as frequent bouts of nausea, dizziness and memory loss. She takes 10 prescription medications, including the powerful painkiller Oxycontin. When she was about 5, she began getting welts on her torso that looked like cigarette burns, she said. She remembers seeing thick clouds of dust from the Asarco tailings pile — today, a literal mountain of mining waste. Some neighbors have cancer; others have died. “There were people who could have stopped this years ago,” Corona said. “They didn’t care.”

Now and then, a court case against a polluter confirms the kind of corporate behavior citizens fear.

In July, a jury in St. Louis awarded $358.5 million — including $320 million in punitive damages — to 16 former residents of Herculaneum, Mo., who were poisoned as young children by airborne lead from a Doe Run Co. smelter. Evidence at trial included a confidential 1989 memo recommending against a mass buyout of contaminated houses.

“Implementation of such an idea would almost certainly invite a major class action suit,” a consultant wrote to one of the smelter’s three owners at the time. The owners decided to stick with the plan already in effect: Buy a few houses a year and rent them out with the stipulation that no children be allowed to live in them. Children, the consultant noted in his memo, are “more vulnerable than adults” to lead’s brain-altering effects.

In Baton Rouge, where Lois Dorsey has long worried about the health of her family and friends, EPA numbers seem to confirm suspicions of dirtier air. Emissions of hazardous air pollutants from five petrochemical plants clustered near Dorsey’s home jumped 14 percent in 2010 compared to the average for the previous five years, according to iWatch News’ analysis of Toxics Release Inventory data reported by plant owners.

An organization known as the Louisiana Bucket Brigade, has taught residents of Baton Rouge and other communities how to take air samples, shoot video and otherwise document air pollution problems. The bucket brigade’s program manager, Anna Hrybyk, isn’t surprised by the apparent rise in pollution. The response by state regulators to citizen complaints tends to be “very sluggish, often to the detriment of public health,” Hrybyk said.

Dorsey and her neighbors live in a state of disquiet. “I wonder about my health,” Dorsey said. “I’m 62. Am I going to live to 70, or even 66?”

Upstate of Baton Rouge, in Shreveport, members of Residents for Air Neutralization, a grassroots group in a predominantly African-American neighborhood, donned T-shirts saying “Clean Air Is Our Right” and went out with buckets on a sticky July 4 weekend in search of noxious odors from the Calumet Specialty Products oil refinery, about which they have complained for a decade.

Over community objections, the Louisiana Department of Environmental Quality (LDEQ) approved a refinery expansion in 2006. Then, last December, Calumet agreed to pay a fine of $1 million for air emissions from its three plants in Louisiana, including in Shreveport, and to spend up to $15 million more on long-term pollution-control projects.

In one sense, the action confirmed what residents have said for years: The Shreveport refinery was polluting the air. But the settlement did little in real terms, residents say. The state refuses to back their main wish — to be relocated. Under the pact, moreover, it agreed not to punish Calumet if old violations were later uncovered. State officials said the clause was justified in the context of a settlement intended to produce cleaner air. Louisiana has long believed industry’s economic and job-creating benefits “greatly outweigh” the costs of pollution.

“I always thought LDEQ and EPA were supposed to be for the people. EPA stands for Environmental Protection Agency,” said Velma White, leader of Residents for Air Neutralization, stressing the words for impact. Her group, she said, “wouldn’t have been organized if LDEQ and the EPA were for the people.”

In public forums, Calumet has pitched itself as a job provider that tries "every day" to limit odors and emissions. In a filing with the Securities and Exchange Commission, the company — which did not respond to interview requests — said it did not expect the fine or the state-ordered improvements to have a “material adverse effect on our financial results or operations.”

The multimillion-dollar package was merely the price of doing business.

This article was reported by Jim Morris, Chris Hamby and Elizabeth Lucas, and written by Morris.

Ronnie Greene and Elizabeth Shogren contributed to this story

Community coated in black mist — until citizens fought back

China Synthetic Rubber Corp — 2013-04-19T14:36:05-04:00

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.

Few criminal cases target big air polluters

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For a decade, hazardous emissions from a refinery regularly swept into a mostly poor, minority neighborhood in Corpus Christi known as Hillcrest, where residents complained of odors, dizziness, vomiting and a range of conditions from asthma to cancer.

In June 2007, jurors found the refinery’s owner, Citgo Petroleum Corp., guilty of two felony criminal violations of the Clean Air Act for failing to control emissions of benzene, a carcinogen, from two massive, uncovered tanks at its refinery on the southern cusp of Texas.

It seemed a major victory for the federal government in its quest to punish Clean Air Act violators. The Justice Department, which prosecuted the case, and the Environmental Protection Agency, which investigated Citgo, said the verdict sent an important message.

“Today’s convictions are a strong signal to the industry that emissions controls are not optional and those who knowingly disregard the regulations will face the consequences,” said Ronald J. Tenpas, then an acting assistant attorney general who oversaw a staff of hundreds in the Justice Department’s environment division.

Four years and five months later, Citgo has yet to face consequences. The company is still awaiting sentencing, a delay that serves as a striking symbol of the federal government’s tepid level of prosecution of Clean Air Act violators.

In policing the nation’s polluters, criminal prosecution is the government’s most potent weapon. Congress passed legislation 21 years ago to strengthen criminal enforcement and encourage the EPA and the Justice Department to go after the worst violators of air pollution laws.

But an investigation by the Center for Public Integrity’s iWatch News shows the extent to which this vision has gone unrealized.

Consider the numbers:

Since 1990, among thousands of criminal environmental cases, fewer than 800 Clean Air Act cases have led to fines or prison time — the fewest of any of the three major environmental laws designed to protect air, water and land. Almost twice as many Clean Water Act cases have been opened, and twice as many have resulted in fines or prison time. Water pollution cases have led to twice the fines, and solid waste cases have triggered twice the prison time.
Just a scant few Clean Air Act cases have focused on air pollution from industrial plants. More than 6 of every 10 cases involved a single provision of the law governing safe handling of asbestos while demolishing or renovating buildings. Excluding asbestos cases, five times as many Clean Water Act cases have resulted in fines or incarceration, and solid waste cases have resulted in five times the prison sentences.
More criminal cases have led to fines or prison time for violations of rules involving reformulated fuels than for toxic air pollution that burdens hundreds of communities across the country. A toughening of the Clean Air Act in 1990 directed the EPA to focus on nearly 200 hazardous air pollutants because of their potential to cause cancer, brain damage and other ailments. Since then, only five criminal cases focusing primarily on air toxics rules have led to penalties, EPA data indicate.
Only 5 percent of all Clean Air Act cases resulting in fines or prison time since 1990 have focused on types of violations that could signal significant polluters affecting nearby communities: violations of stack emissions limits, tampering with monitors, falsifying records or illegally releasing hazardous air pollutants. By comparison, about 20 percent of all Clean Air Act cases have focused on rules phasing out substances that could damage the ozone layer; many of these cases target smugglers of banned chemicals.

The unfulfilled promise of the Clean Air Act is hardly a secret within the legal system. “There’s a widely held view among prosecutors that there has been too little prosecution of Clean Air Act cases historically,” said David Uhlmann, who headed the Justice Department’s Environmental Crimes Section from 2000 to 2007 and is now a law professor at the University of Michigan.

In a response to iWatch News, an EPA spokesman acknowledged the traditional emphasis on cases involving asbestos and ozone-depleting substances. But he said five years ago the agency placed new emphasis on other types of Clean Air Act cases. EPA now has more than 100 Clean Air Act criminal cases under investigation in these other areas, he said.

Air pollution cases present unique challenges, lawyers and enforcement officials told iWatch News. The Clean Air Act is the most complex of the major environmental laws, and evidence can be less tangible and more open to challenge. Accused polluters often have deep pockets to stretch cases along, prompting the EPA and the Justice Department to pursue financial settlements instead of criminal trials.

It’s not that companies aren’t violating air pollution rules. Regulators have caught some gaming the system, and the cases don’t appear to be isolated. “I don’t think they’re getting to all that should be investigated criminally,” said Fred Burnside, who was the national director of the EPA’s criminal enforcement office until leaving last December. “The criminal program can’t investigate them all, so they have to take the worst of the worst. They take the ones they hear about.”

As of August, EPA data show, nearly 300 sites have been tagged as “high priority violators” of the Clean Air Act for at least a decade. And roughly 400 sites across the country are on an internal EPA “watch list” that includes serious or chronic polluters that have faced no formal enforcement action for nine months or more.

Just being on the list doesn’t mean a company broke the law, but Burnside said criminal enforcement officials sometimes used the list as a starting point for identifying scofflaws. “I think there are things being missed because the criminal side is not as plugged in as it could be,” Burnside said.

The low level of criminal prosecutions shows that the EPA is reluctant to wield its biggest stick — the start of a domino-like effect that can let companies off the hook, leave communities unprotected and undermine Washington’s apparent intent: deterring future law-breaking and convincing companies it’s in their best interest to follow the rules.

Grappling with evidence that is ‘up in smoke’

Criminal cases are supposed to target the worst offenders who meet the EPA’s threshold criteria of “significant environmental harm and culpable conduct.”

The system of rules designed to limit air pollution relies heavily on companies to self-report, leaving room for unscrupulous managers to game the system. Criminal investigations are supposed to target those offenders who lie, cheat or manipulate the rules in the name of profit.

Yet in a system that fosters self-regulation, it’s often difficult to detect when a company is lying. Many criminal cases begin only with a tip from a whistleblower or disgruntled former employee or an observation by a vigilant inspector.

Air pollution cases are perhaps hardest to identify. If a company violates water pollution laws, it may kill fish or visibly despoil the waters. If a company illegally dumps hazardous waste, the pollution source often can be easily traced.

“With air cases, your evidence is up in smoke,” said Mike Burnett, the special agent in charge of the EPA’s criminal office in Kansas City, Kan. The violations may not be clear even to a trained inspector. Criminal investigators often need someone to tell them where to look — say, for doctored reports or evidence of tampering with equipment.

The EPA says it launches investigations into only 20 percent of the leads it gets, and about a third of these cases result in criminal charges. An investigation can take years, depending on the case’s complexity.

Prosecutors often eschew cases that don’t involve clear harm. But proving harm in air pollution cases can be especially tough. Lying to the EPA may undermine the honor system on which regulators rely, but “it’s hard to get prosecutors excited about those cases,” Burnett said.

In 2008, for example, the Office of Inspector General for the Tennessee Valley Authority, a federally owned electric utility, documented a history of leaks at some of the utility’s power plants. Managers had failed to report the leaks to regulators, as required. The office, working with EPA criminal enforcement officials, presented the case to the U.S. Attorney’s Office for the Northern District of Alabama. The office declined to prosecute. A spokesperson for the office declined to comment.

The emphasis placed on pollution cases can vary significantly among U.S. Attorneys’ offices. “Some don’t consider environmental crimes to be as important as other crimes,” former EPA criminal enforcement head Burnside said.

Judges rarely hear Clean Air Act cases, and prosecutors must weigh whether the law’s complexities, and the science behind it, will sit easily with juries.

“Will it be so complicated that the average juror won’t be able to grasp the regulatory structure necessary to get a conviction?” asked Bruce Pasfield, who worked until 2005 as a prosecutor in the Justice Department’s Environmental Crimes Section and now defends companies facing prosecution.

A common defense: Paint the regulations as so confusing that complying is nearly impossible.

“The defendants’ job, and they do it very, very well, is to make it as complicated as possible, to blow as much smoke into the courtroom as possible,” said Eric Schaeffer, a former top EPA enforcement official who co-founded the nonprofit Environmental Integrity Project in March 2002. “And we’ve seen situations where [it] felt like … we were about to get an obvious jury verdict in a criminal case, [but] the jury’s confused by the facts and the law.”

Perhaps the government’s most ambitious prosecution of a Clean Air Act case produced a defeat in 2009. For years, the EPA and the Justice Department alleged, the chemical company W.R. Grace knowingly exposed the residents of Libby, Mont., to asbestos from its mine. At least 100 residents died from asbestos-related diseases, and hundreds more were sickened in what the Justice Department called “one of the largest environmental and public health disasters the nation has faced.”

The company fought the case in court, and ultimately, a jury acquitted Grace and three of its executives.

Few cases target big plants

There have been successes. From 2005 to 2009, the government won convictions of pipe manufacturer McWane Industries for environmental crimes across the country, including Clean Air Act violations.

This October, Pelican Refining Company pleaded guilty to Clean Air Act and other violations at its Lake Charles, La., oil refinery and agreed to pay $12 million in criminal penalties and $2 million for environmental projects. The company admitted incorrectly operating or completely bypassing some pollution control equipment. A company vice president and a manager have also pleaded guilty and face substantial fines and possible prison time when they are sentenced.

But such cases are rare. Changes to the law in 1990 were supposed to make criminal prosecution of companies that flout air pollution laws a more realistic threat, but that hasn’t played out in the years since.

Before 1990, air pollution violations were typically misdemeanors. Prosecutors often forgo such cases in favor of felonies that carry more severe penalties. The 1990 Clean Air Act Amendments made a number of offenses felonies — following the lead of environmental laws governing water and solid waste. Now companies and managers could face prosecution for knowingly violating air pollution rules, falsifying records, tampering with air monitors or placing a person in danger by negligently releasing hazardous air pollutants.

Until the change, most Clean Air case cases targeted a section of the law governing the safe handling of asbestos during building renovations or demolition, a 1993 EPA memo noted. But the 1990 amendments should change this, wrote Kathleen Hughes, acting director of the criminal enforcement counsel division, in the memo. “Criminal cases will inevitably extend beyond the present realm of asbestos violations and involve groundbreaking and challenging investigations and prosecutions,” she wrote.

For the most part, that has not happened. Since 1990, roughly 62 percent of Clean Air Act cases leading to fines or prison time involved asbestos. These cases, Burnside said, "are sort of low-hanging fruit." In recent years, Burnside said, the agency has shifted some of its focus toward large industrial plants and tried to limit the number of asbestos cases. EPA data indicate the agency has started to cast a wider net of Clean Air Act cases, but about 40 percent of all investigations opened during the 2010 fiscal year still targeted asbestos.

The number of cases focusing on air pollution from industrial plants is strikingly small. In addition to asbestos cases, another 20 percent of all Clean Air Act cases producing fines or prison time since 1990 involved a section of the law designed to phase out substances that damage the ozone layer. Many of these cases target smugglers of banned substances.

Prosecutors in the Justice Department’s environment and natural resources division also prosecute violations of the Migratory Bird Treaty Act, which are investigated by the U.S. Fish and Wildlife Service. Since 1990, twice as many cases under this law have led to fines or prison time as cases primarily focused on the release of toxic air pollution.

In fact, just 5 percent of all Clean Air Act cases resulting in fines or prison time since 1990 have focused on violations of stack emissions limits, tampering with monitors, falsifying records or illegally releasing hazardous air pollutants. Another 10 percent don’t fall under a specific category, EPA data show.

Other changes in 1990 were supposed to make it easier to prosecute companies that violated air pollution rules. Before the Clean Air Act Amendments, many plants were subject to multiple sets of requirements, each to address a certain type of air pollution. The changes in 1990 sought to make air pollution requirements more like those for water and solid waste: Under the law’s Title V, large air pollution sources would have a permit that consolidated the different requirements that applied.

“There was a general sense that Title V would create a more easily prosecutable set of offenses,” said former prosecutor Pasfield. “Except we never saw a significant increase, at least on the criminal side. … In looking back, I think that Title V was not the panacea that we all thought.”

Congress that year also passed the Pollution Prosecution Act, directing the EPA to boost the criminal investigative force to 200 by 1995 and to maintain that level. Between 1998 and 2009, however, the number of investigators decreased. In the 2010 fiscal year, it topped 200 for the first time since 2004.

After Sept. 11, 2001, some EPA criminal investigators were pulled into homeland security work and assignments protecting the agency’s administrator.

At the EPA, opened criminal investigations decreased almost every year from 1998 to 2008 — a downward trend that began slowly turning around in the 2009 fiscal year. Still, because fewer investigations were opened in recent years, fewer are now resulting in convictions. In the 2010 fiscal year, fewer environmental crimes cases resulted in fines or prison time than in any year since 1996.

Cases can drag on for years, blunting any deterrent or retributive effect.

“At some point, you’re grinding through this case, the children living near the plant, they’ve grown up if they’ve survived, and … either they’re going to carry that cancer because they’ve already been exposed, or they’re out of the community,” Schaeffer said. “You’ve not helped the people that you stepped in to try to do something for.”

A dearth of prison time

Even when the Justice Department puts its muscle behind a criminal case, it may not bring prison time.

In 2009, Heraeus Metal Processing Inc. pleaded guilty in federal court to making false material statements after investigators said a company manager at a Tennessee plant created false logs detailing how the company was operating air pollution control equipment. In court, the company admitted it broke the law but said it takes environmental compliance seriously.

Under its plea deal, Heraeus was ordered to pay a $350,000 fine and serve 18 months’ probation. The company manager, who investigators accused of forging others’ initials and directing falsification of documents, pleaded guilty and received one year of probation and 50 hours of community service.

Sometimes people do go to prison for falsifying records — on car emissions. Two months after the Heraeus plea, a Missouri man was sentenced to 10 months in prison for a Clean Air Act violation: faking vehicle emissions test results.

In Tennessee, Heraeus’ precious-metal reclamation facility stands within two miles of three schools and near the Frozen Head State Park and Natural Area. Advocates say its proximity shows why the laws are important.

“The plant is less than a mile from a state park,” said Sandra Goss, executive director of Tennessee Citizens for Wilderness Planning. “They have all this delightful, beautiful pristine wilderness land which helps everyone in the watershed have cleaner water and natural air.”

Despite lone inspector’s efforts, persistent haze envelops Iowa town

2013-04-19T14:36:05-04:00

MUSCATINE, Iowa — One spring day in 2010, the haze hanging over this Mississippi River town was worse than usual. It billowed from the smokestacks of a corn processing plant and blanketed the neighborhood across the street. It enshrouded homes and, seen from a certain angle, looked almost blue.

Kurt Levetzow watched from his car. An inspector with the state agency that enforces air pollution laws, he’d been fielding more and more citizen complaints lately about Grain Processing Corp., known as GPC.

The company’s plant sits on the edge of the town’s South End neighborhood, where black soot and bits of corn collect on cars and homes and many residents worry about what they’re breathing. Even on an ordinary day, a pungent burnt-corn odor hangs in the air, and the haze can be seen from miles away.

But Levetzow hadn’t seen anything like this. Driving through the neighborhood near the plant, he snapped pictures and took notes for the memo he would write. “I went through Muscatine on 3-26-10,” he wrote. “I was amazed at what I saw.”

A pickup truck came to a stop next to Levetzow’s car. It was a company security guard.

“Is there a problem?” the guard asked.

“Yes, there is,” Levetzow answered. “GPC is fogging that residential area with a blue haze.” Levetzow pointed. “You see what I mean?”

The guard looked over. “Ah, they’re getting used to that,” he said, chuckling.

Many communities have had little choice but to get used to it. As the Center for Public Integrity’s iWatch News has reported, hundreds of communities are beset with chronic air pollution involving toxic chemicals Congress intended to rein in years ago. Here in the heart of the Corn Belt, people endure the consequences of a regulatory system that has failed them for years.

The plant’s troubles are well-known to state and federal officials, but fixes — when they have come at all — have been slow. Memos, reports and thousands of emails obtained by iWatch News detail Levetzow’s efforts, the company’s resistance and the state environmental agency’s passivity. They also highlight gaps in a regulatory system that relies on a self-reporting honor system, spotty monitoring and ambiguous rules.

Officials at the state Department of Natural Resources, known as the DNR, have allowed GPC to avoid improvements that would reduce pollution. Even when Levetzow told his bosses he thought GPC’s apparent compliance with air pollution laws was a façade and repeatedly urged them to act, they did little, emails show.

The company says it stays within the limits outlined in its permit, has followed air pollution rules and is upgrading pollution control equipment as part of a major plant improvement project, some of which is scheduled to be finished in 2014. The improvements — some required by a court order resolving a case brought by the state for environmental violations five years ago — still may fail to keep the area in compliance with air quality standards, the state says.

GPC spokesperson Janet Sichterman said other companies share responsibility for Muscatine’s air quality problems, and GPC is doing its part to clean up the skies. “We want this to be a great community with quality air, too,” she said.

While the Clean Air Act delegated enforcement duties to the states, the U.S. Environmental Protection Agency keeps tabs on state agencies and sometimes steps in. The plant appeared on the September version of EPA’s internal “watch list,” which includes serious or chronic violators of the Clean Air Act that have faced no formal enforcement action for nine months or more. GPC was not on the list in October.

Now, after years on the sidelines, the EPA has started to get involved. The agency says it is conducting an ongoing criminal investigation of GPC — a rare step the EPA usually reserves for companies it feels have knowingly violated the law. In December 2009, a team of investigators led by the EPA raided the plant and seized documents. Sichterman said the company doesn’t know why it’s being investigated but is confident the probe will determine GPC followed all laws.

Some residents, no longer content to wait for official action, are organizing and building their own case. They are filing complaints and documenting health problems. Recently, they hired a lawyer. As in other communities, they face significant hurdles, from limited air monitoring and health studies that would help them make their case to wariness among their neighbors about taking on powerful political and economic forces.

Even if the investigation and the company’s planned improvements bring change, some residents worry cleaner air may come too late. “Every day it seems like it’s getting worse,” said Wanda Mansaray, who grew up in the South End and said she wears a mask when working in her yard. “How long’s it going to take before they say, ‘We’ve found something irreversible in your lungs we can’t fix’? ”

‘Perfectly legal’

Muscatine-based GPC, a privately owned company with the motto “where innovation comes naturally,” has more than six decades of history in the town known as the “Pearl of the Mississippi.” Each day, the plant transforms the area’s staple crop into beverage alcohol, ethanol and the syrups and starches that make sports drinks sweet and granola bars chewy.

But those living in the plant’s shadow, particularly in the working-class South End neighborhood, worry about its other products: the gases and small particles shooting from its stacks.

Last year, the plant released more lead — a toxic metal that can damage the nervous system — than any plant in the state, according to DNR data. It emitted more acetaldehyde — a probable carcinogen chemically similar to formaldehyde — than almost any plant in the country, EPA data show. Blue haze can indicate the presence of compounds such as acetaldehyde.

State officials began a study of toxic emissions from the plant last year after discovering that GPC appeared to have underreported in submissions to the EPA, said Catharine Fitzsimmons, head of the department’s air quality bureau. But the study is suspended, Fitzsimmons said, so DNR can focus on a higher priority: reducing emissions of fine particles in Muscatine to avoid a designation by the EPA – nonattainment of a Clean Air Act standard – that could jeopardize the area’s economic future.

Near the plant, siding is speckled, and satellite dishes once white have turned almost black. Residents say they can wash a car one day, then write their name in the black soot on it the next. There has been no health study, but many people complain of health problems — from breathing troubles to cancer. In recent years, the county has had one of the state’s highest cancer mortality rates.

Levetzow, 36, one of Iowa’s more senior inspectors, oversees the largest emitters across southeastern Iowa. To him, it’s long been clear that GPC has spewed more pollution than allowed. “It seems obvious to me … that they’ve been out of compliance for a long time,” he wrote in a 2009 email to a DNR lawyer. Gathering the evidence — and getting his bosses to act — has been the challenge, emails between him and DNR officials show.

Levetzow’s starting point was what he viewed as a fundamental disconnect: GPC said it was complying with the limits set in its permit, but the obvious haze indicated otherwise. That led to a question he couldn’t yet answer: If GPC had been failing to comply with pollution limits, why had none of the checks set up by the state — monitors, mandatory self-reporting, periodic testing — detected it?

A key development came in October 2008. Union workers who had been locked out by GPC came to DNR, alleging the company used environmental practices that ranged from sketchy to illegal.

Among their allegations: GPC switched between types of coal to fool an air monitor. When Levetzow inspected the plant, he found two piles of coal. One was high in sulfur — a type that releases more sulfur dioxide, the pollutant measured by the monitor. The other, lower in sulfur, was used only sporadically.

GPC does not dispute switching types of coal when the wind was blowing toward the monitor but says it acted to protect public health by keeping sulfur dioxide emissions in check.

Switching between coal sources is “perfectly legal,” GPC’s environmental director, Mick Durham, said in an interview with iWatch News. “People assumed that something was being hidden or we were trying to get out of regulation, but that’s not the case at all.”

The company stopped the practice in the winter of 2009, company spokesperson Sichterman said, because it could be misinterpreted as an attempt to trick regulators. Now it burns only the high-sulfur coal, she said. “You’ve heard the term, ‘No good deed goes unpunished.’ They were doing it as a good deed,” she said.

The EPA may take a dimmer view of the practice, said Fred Burnside, who left the agency last year after serving as head of criminal enforcement and now advises companies and law firms. “That would be a very high-priority case because they’re basically altering the monitor,” said Burnside, who wasn’t directly involved in the case while at the EPA.

While investigating the coal switching, Levetzow found another cause for concern. GPC, it appeared, hadn’t reported a number of instances when pollution exceeded allowed limits. These episodes are generally considered violations of air pollution rules, but in Iowa — as in many states — companies can avoid notifying regulators of the excess emissions under a narrow set of circumstances – for example, when cleaning pollution control equipment.

GPC seemed to clean its pollution control equipment often, state records show. Each quarter, the company submitted a lengthy report of excess emissions, including some it had decided were allowed, citing this exemption. The more Levetzow pressed GPC, the more concerned he became that the company was misusing the exemptions to conceal frequent violations of its permit limits. Officials in the air quality bureau’s main office later told him they agreed that GPC was sometimes claiming exemptions where they didn’t apply, an email from the agency’s top compliance officer shows.

If the company had reported all its excess pollution episodes, regulators might have been able to force improvements. Instead, it looked like GPC was doing what it was supposed to do.

Sichterman said the company has changed its operations and better trained its employees, eliminating the practices that caused some excess emissions. It stopped claiming some exemptions a couple of years ago, she said.

Emails show that some DNR officials believe GPC avoided the practices that led to spikes in pollution during the periodic tests it must run to show compliance, and locked-out union officials made similar allegations in interviews with iWatch News. If true, this would have allowed the company to report less pollution than it was actually releasing. GPC’s Sichterman said the company has never altered its operations during testing.

During the past decade, the state has issued GPC 38 notices of violation related to air pollution, many of them scolding the company for failing to keep monitors in operation at all times or for failing to seek approval for modifications of the factory — types of violations that can make it difficult for regulators to keep tabs on pollution from the plant. Violations resulted in penalties on two occasions, and the company paid a total of $548,000 in fines, DNR officials said.

‘Do we just have to sit back and wait?’

State regulators and GPC agree that one way to significantly cut pollution at the plant would be to hook up pollution control equipment the company already owns. In 2007, the company bought a large building known as a baghouse, which would house filters to capture particles that can cause respiratory problems and carry toxic materials like lead. But GPC has since refused to hook it up, and the DNR has not compelled the company to do it, correspondence between the company and the department show.

The baghouse still sits on the plant grounds — a monument to inaction, and to the wars over regulation 900 miles away in Washington.

GPC bought the equipment to comply with an EPA rule that would have taken effect in September 2007 requiring curbs on pollution from boilers — in GPC’s case, six devices that burn coal to power the plant.

Just months before the rule was to take effect, however, a federal court vacated it, sending EPA back to the drawing board. Four years later, the rule still hasn’t taken effect, and some in Congress want to see it further delayed, saying it threatens jobs.

Companies often complain about the nation’s sputtering regulatory process, saying uncertainty can add to expenses and complicate planning. GPC hasn’t installed the baghouse, Sichterman said, because it’s unclear whether it would meet the requirements of the new rule, whenever it takes effect. If it doesn’t, the cost of modifying it later would exceed the cost of making all the changes at once.

But everything Levetzow had uncovered indicated to him that GPC wasn’t able to keep its emissions in check with the equipment it had — devices many similar plants had phased out years earlier. Emails show he worried about the consequences of waiting for the new EPA rule or for GPC’s planned improvements. In the interim, higher emissions would continue.

For at least a year, he sent emails to his bosses in Des Moines, outlining the problem and what he thought could be done. For instance, the department could require GPC to run tests proving it was staying within its pollution limits. If the company didn’t pass, the department could require GPC to hook up the baghouse, Levetzow suggested.

His bosses did little in response. Levetzow’s emails to them tell the story:

December 2008: “Do we just have [to] sit back and wait?…GPC’s environmental people…agree that the new [baghouse] would more or less do away with the haze that can be seen above GPC and half of Muscatine on any given day, but they’re waiting for someone (new Boiler [rule]) to require them to do it.”

May 2009: “I’ve heard the new [EPA boiler rule] may not come out for 4 more years or so, so that’s a LONG time to allow them to spew all over Muscatine.”

June 2009: “Seems to me, we have all we need right now.”

October 2009: “Am I totally out of line????”

Top officials in the department’s air quality bureau told iWatch News they didn’t recall discussing Levetzow’s concerns. “We didn’t really have any authority to require” GPC to hook up its baghouse, said Brian Hutchins, head of the department’s compliance office. He acknowledged the DNR could have required the company to run tests, as Levetzow suggested, but said he didn’t recall discussion of mandating them.

Over the years, the department hasn’t required GPC to upgrade its pollution control equipment, even as similar plants have modernized. In 1990, the state allowed GPC to avoid added scrutiny of a construction project as long as the company agreed to limit the hours it ran new equipment known as a dryer. The company also closed some gravel roads, in theory offsetting the increase in pollution from its stacks with reductions in the amount of dust kicked up by trucks at the plant.

If the project had added 25 tons of small particles into the air each year, GPC would have been required to analyze potential impacts and possibly install better pollution control equipment. Because the project would result in only 24.4 extra tons, calculations indicated, GPC didn’t have to do either.

It was more than a decade before state regulators discovered that the company had been violating the hourly operating limit for years. GPC paid a $538,000 fine, and many of the improvements the company is now touting are in response to requirements of the 2006 agreement resolving the case.

State officials have since discovered that another expansion of the plant, which also avoided a more rigorous review, “was an error and never should have been allowed” by the state, according to an internal engineering evaluation by the DNR. Testing in 2005 indicated the equipment was releasing pollution at twice the allowed rate, but the state responded by increasing GPC’s limit, again allowing it to avoid a tougher review.

Four years later, the company began using a different fuel in the equipment, and tests conducted by GPC the next year again showed the plant emitted more than twice the allowed level of pollutants.. The department earlier this year asked the state attorney general to pursue a case for this and other violations.

Durham, GPC’s environmental director, said the most recent violations were minor. “There will be some type of fine,” he said, “and we’ll end up paying it.”

This reality irks many residents. “If we don’t have them be accountable for what they’re doing to us, they’re just going to go right on doing it,” said Sherry Leonard, who has lived near the plant for more than 30 years. “And they’re going to pay fines and never stop.”

‘Stirring things up’

Many in Muscatine now are raising concerns about the air they breathe for the first time, but others are wary of challenging political and economic forces in their community.

In 2008, a local politician in the state House of Representatives, Democrat Nathan Reichert, put together a forum where DNR officials fielded questions from his constituents about the town’s air pollution troubles.

“Politically,” Reichert recalled, “it was as if I had stuck a stick in a beehive.”

City Councilman Robert Howard sent a seething complaint to Iowa’s environmental agency. “Eastern Iowa is a bright spot for Iowa’s economic growth and future,” he wrote. “Why would [the department] want to handicap our ability to compete?” And GPC’s Durham complained in an email to Levetzow that Reichert was “stirring things up among the residents.”

In 2010, the business community put its financial support behind Reichert’s Republican challenger; the two largest contributions came from Gage Kent, the chairman and CEO of GPC’s parent company, who gave $5,000, and James Kent, his father and the company’s vice chairman, who gave $10,000.

Roger Lande, who took the helm as DNR director earlier this year, also had contributed to Reichert’s opponent. Lande, whose former law firm represented GPC, is a former chairman of the Iowa Association of Business and Industry. Two of the eight members of the Muscatine City Council work for GPC.

Though Reichert lost, the attention he called to air quality helped spark a movement that coalesced earlier this year as a group calling itself Clean Air Muscatine. Experts and activists from other Iowa communities have helped the group organize and conduct surveys. Residents are documenting dates, times and what they’re seeing or feeling. They’re complaining to the state and the EPA.

Recently, they hired James Larew, who served as general counsel to former Gov. Chet Culver, a Democrat, to explore possible legal action against GPC. Larew said he couldn’t discuss a potential case, but, in general, he said, “There is a great danger that the regulated community has too much power with the regulators, and as a result the public interest is at risk …My hope is that we can make citizens feel…that they have a seat at the table.”

The company is defending itself publicly and issuing press releases about its commitment to the environment. The planned improvements to the plant – new, more efficient equipment and better pollution control devices – will cost about $100 million, a fact GPC has publicized.

“The company is voluntarily doing this project,” Sichterman said. “That’s part of our effort to be a great corporate citizen.”

Durham acknowledged that some of the improvements are required by the agreement the company signed five years ago — then tried unsuccessfully to have vacated by a judge — to resolve the state’s air pollution case. But the improvements go beyond what is mandated, he said.

GPC predicts significant reductions in air pollution, but the DNR says the planned improvements, still three years distant, won’t happen soon enough and likely won’t go far enough to make sure the area meets EPA standards designed to protect public health.

In July 2010, Richard Leopold, then the director of the DNR, wrote a pointed letter to GPC, asking the company to do more to reduce pollution.

“The citizens living, working and raising families in the vicinity of your facility deserve better than this,” he wrote.

In the 16 months since, negotiations between the state and the company have achieved few tangible results, acknowledged DNR official Fitzsimmons. The haze remains, citizen complaints continue and Levetzow is still taking pictures to document the smoke and ash pouring from GPC’s stacks and over the South End.

In smelter town, decades of dirty air, disease — and bureaucratic dawdling

ASARCO Incorporated — 2013-04-19T14:36:05-04:00

HAYDEN, Ariz. — As Betty Amparano sees it, the failures that all but ruined this wisp of a town occurred on multiple levels.

A copper smelter failed to keep toxic air pollution in check. The state failed to lean on the smelter’s owner, Asarco. And the federal government failed, until days ago, to override the state.

“The bottom line is that the whole town is contaminated,” said Amparano, who was born in Hayden and has lived here most of her life.

Soil tainted by airborne metals has been excavated from hundreds of yards. In some families, generations claim to have suffered ill effects from bad air. Deaths from cancer are common. Regulators have done little; for people who live here, the sense of betrayal is profound.

On Nov. 10, the U.S. Environmental Protection Agency moved against Asarco for what the EPA describes as more than six years of illegal emissions of arsenic, lead, chromium and seven other dangerous compounds from the smelter. The agency issued an unpublicized administrative action that could result in millions of dollars in fines from Asarco for allegedly being in “continuous violation” of the Clean Air Act since June 2005. The action is a slap at both the company and the state — another measure of failure.

Asarco says its emissions are within legal limits and promises to “vigorously” contest the EPA’s claims. The head of the Arizona Department of Environmental Quality (ADEQ) calls the federal filing a “paperwork exercise” and an “attempt by the EPA to make it seem as if the state of Arizona has done nothing when, in fact, that is not true.” At the same time, he acknowledges the state has been too slow to act.

People in Hayden just want someone to do something about the air.

Known risks, government inaction

When it comes to toxic air pollution, help often arrives late. As an investigation by the Center for Public Integrity’s iWatch News and NPR has shown, the EPA itself maintains an internal watch list that catalogs the extent of foot-dragging by state environmental agencies entrusted by Washington to protect public health. Some agencies fail to crack down on known polluters for months or years. The Asarco smelter, while not on the watch list, is among more than 1,600 facilities the EPA considers “high priority violators” of the Clean Air Act — sites that regulators believe need urgent attention.

Here, government inaction goes back decades.

Amparano started a lawsuit against Asarco in the late 1990s — since settled — that came to include more than 200 plaintiffs. She welcomes the federal intervention but wishes it had come sooner. She’d like to ask the EPA, “Why the hell did you take so long?”

Since 1912, Hayden, population barely 900, has been both blessed and cursed by the presence of the smelter, fed by Asarco’s massive, open-pit Ray Mine 20 miles up the road. The smelter and mine have brought with them a precious commodity in this barren stretch of southeastern Arizona an hour north of Tucson — jobs. The jobs may have come at a steep price.

Asarco has spent the past three years cleaning up Hayden. On order of the EPA, the company has paid millions for the removal and replacement of dirt in the yards of nearly 300 residents because the soil was contaminated with arsenic, which can cause cancer, and lead, which can disrupt brain function.

And yet emissions from the smelter and dust blown from a 2,000-acre tailings pile — an ever-expanding mountain of mining waste — continue to deposit those same metals and other poisons on this poor, mostly Latino community.

It’s hard to escape Asarco’s footprint. The smelter’s 1,000-foot smokestack is visible from anywhere in town. A community playground and swimming pool lie just yards from the plant’s fence.

Asarco has long maintained — and the state concurs — that the Hayden smelter is not a “major source” of hazardous air pollutants, a designation that could force the company to install costly controls. The EPA disagrees, saying in its Nov. 10 filing that Asarco “has failed and continues to fail to comply” with federal rules applying to big polluters.

“There is no simple paperwork violation,” Jared Blumenfeld, the EPA’s regional administrator in San Francisco, told iWatch News and NPR. “We feel very comfortable, based on the science, that the Hayden Asarco facility is a major source and therefore needs to comply with the Clean Air Act by putting control technologies on.”

Amparano and her older sister, Mary Corona, have inventoried what they describe as a staggering amount of death and disease in Hayden: Middle-aged people and children who succumbed to cancer. Kids with asthma and young adults who may be suffering the effects of childhood lead exposures.

The pollution and the risks have been well known to regulators for years.

A 1980 memo by a state environmental official noted that the Hayden smelter has “problems with lead and arsenic fumes during their process because of the type of ore they receive … There is still a large amount of fugitive gas escaping.”

Concerns about fugitive emissions — from parts of the smelter other than the smokestack — continued. In 2009, the EPA reported that “air monitoring in [Hayden] has shown levels of arsenic, lead and chromium still exceeding public health standards, probably due to toxic fumes escaping from leaks in the plant” — an assertion Asarco disputes.

Asarco acknowledges discharging arsenic, lead, sulfuric acid and other pollutants from the smelter but accepts no blame for anyone’s poor health. “There’s no reason to be alarmed,” said Joseph Wilhelm, general manager of the company’s Hayden operations. Nonetheless, Asarco, which emerged from bankruptcy in 2009 and now is reaping the benefits of soaring copper prices, has promised to do better. In a statement to iWatch News and NPR, the company said it is investing $9 million to “significantly reduce not only lead emissions but other [hazardous air] emissions including arsenic and chromium.”

The EPA seems unimpressed.

In a letter on July 27, the agency chastised Asarco for not taking the Hayden cleanup more seriously, saying the company seemed more interested in justifying its lack of cooperation than in “providing any attempt at compliance.” Asarco is contesting the EPA’s allegations through a dispute resolution process.

In a letter to Arizona Gov. Jan Brewer on Nov. 8, EPA Administrator Lisa Jackson wrote that air monitoring this year had measured lead levels in Hayden at up to three times the federal standard.

And in its Nov. 10 “finding of violation,” the EPA alleged that Asarco has, among other things, failed to comply with emissions limits since 2005.

The federal government, which allows states to be the primary enforcers of the Clean Air Act, has largely deferred to Arizona’s regulatory agency. Despite the EPA’s allegations, Asarco has faced few repercussions for its activities in Hayden. A spokesman for the ADEQ said the company over the last five years has paid a single, $77,500 air pollution fine — for blowing dust from the tailings pile.

Asarco is owned by a Mexico City-based mining and smelting conglomerate, Grupo México, which reported what it called “record results” for 2010 — more than $8 billion in sales, a 67-percent increase over 2009. Copper sales alone totaled $5.3 billion, up from $2.7 billion.

A company town

Workers have been gouging copper ore from the Ray Mine since 1880. Asarco began processing the ore at its Hayden smelter in 1912, turning out 800-pound slabs of nearly pure copper called anodes.

“Without Asarco, the town of Hayden wouldn’t be able to exist,” said Mayor Monica Badillo, an operator with the company. “We get a lot of our tax revenue from the mine, so that’s what helps us continue to thrive. Every bit of copper that they sell, we get sales tax on that.”

Mary Corona and her sister, Betty, were born in 1958 and 1959, respectively. They grew up with four siblings in Hayden’s barrio, known as San Pedro. Mary recalls having bloody noses and fevers as a child and recurring sores on her torso that looked like cigarette burns. She and Betty would play in a gully — an arroyo — behind their home and apply purple and pink residue to their faces as pretend makeup. That residue, they now believe, was a toxic byproduct of Asarco wastewater.

Huge dust clouds from the tailings pile were common in the 1960s, Mary said. “It was so bad we couldn’t see our hands in front of our faces.” Acid from the smelter would eat the paint off of cars, and Asarco sometimes would reimburse the owners.

By the 1970s, unsettling research on smelter towns, including Hayden, was appearing in the medical literature. A 1977 article in the American Journal of Epidemiology found, for example, that “chronic absorption of arsenic, lead, and cadmium by persons living near smelters, particularly by such potentially vulnerable groups such as young children and pregnant women, may be causing undetected, latent disease that will become manifest in the future.” The authors studied 19 communities in all, 11 with copper smelters.

Hair samples taken from children in Hayden showed the second-highest levels of arsenic among the 11 towns; only Anaconda, Mont., was worse.

In 1990, the Arizona Department of Health Services found elevated lung cancer death rates in the Gila Basin, which includes Hayden. “The cause of the elevation remains to be explained,” the department said. “Data is lacking concerning the incidence of cigarette smoking, and the levels of exposure to arsenic or other potential carcinogens.”

Passage of the Clean Air Act amendments that same year sharpened regulators’ focus on air toxics — nearly 200 hazardous chemicals that could cause cancer, birth defects and other ailments. Beginning in 1991, two inspectors with the ADEQ, Dave Kempson and Mike Traubert, went after Asarco aggressively, regularly writing up the company for so-called opacity violations. High opacity — the degree to which air is impenetrable to light — can be an indicator of excessive particulate emissions, which can include arsenic, lead and other harmful metals.

Reports by Kempson and Traubert in 1991 and 1992 — obtained by iWatch News from ADEQ files — describe dense plumes of smoke emanating from the smelter. The violations added up, but Asarco pushed back. In a June 7, 1991, letter to the ADEQ, the company complained, “Your office seems intent on creating an adversarial relationship with a company that has consistently cooperated in efforts to improve air quality in this community.”

In recent interviews with iWatch News in Phoenix, Kempson and Traubert — no longer with the agency — recalled hoping to build a major enforcement case against Asarco. Unannounced inspections often turned up violations. “We would then document those violations and write a letter [to Asarco],” Kempson said, “and more often than not would get a rebuttal from the company’s law firm.”

Traubert said that Asarco would “explain [an air release] away as an extraordinary event” — unusual and uncontrollable. “It strained credulity a bit,” he said.

Ultimately, Traubert said, the hoped-for case against Asarco “kind of languished. I don’t have a good explanation of why it didn’t go any farther. Within our group we certainly had the perception that you tangle with the mines with care.”

Blood tests and litigation

In 1997, Betty Amparano was asked to renew her lease on the house she’d been renting in Hayden. The house was on Terrace Drive, on a hill near the tailings pile. The lease included a caveat: The house was contaminated with metals-laden dust.

Amparano took her seven children to the doctor for blood tests. All had blood lead levels above what the federal government considered to be safe. Erin, then 5, and Ray, then 8, had levels more than four times higher than the limit. Even relatively low lead exposures have been associated with diminished IQs, learning disabilities and other neurological problems.

Erin Amparano, now 19, said she still suffers from the lead that entered her blood. “I have trouble sleeping at night,” she said. “I’m always really hyper. I get rashes and headaches. I had difficulty learning, and it was real hard for me to pay attention. I’m still like that to this day.” She has two young daughters of her own. “If I had a choice, I wouldn’t be here,” she said.

A local newspaper published a story about the Amparanos’ plight in 1997, catching the attention of Steve Brittle, leader of a Phoenix-based environmental group called Don’t Waste Arizona. During his first visit to Hayden, “I was absolutely horrified,” Brittle said. “I didn’t think anything like this could exist in America. It didn’t seem like it could be possible with the environmental laws.”

Brittle connected the Amparanos and other Hayden residents with a lawyer in Tempe, Ariz., Howard Shanker, who began pulling together a class-action lawsuit against Asarco. More than 200 people eventually signed on, alleging they had suffered health effects from Asarco’s noxious emissions. Shanker commissioned tests for lead and arsenic. “A lot of people” came back with high levels, he said. “Clearly, it was attributable to Asarco emissions and operations.” Asarco denied any responsibility.

The lawsuit dragged on. In 1999, researchers with the University of Arizona tested the blood of 14 infants and young children for lead and found “no evidence of excessive … exposure.” The same group found elevated levels of arsenic in the urine of five of 224 people tested and speculated that “exposure to house dust may have been a contributing factor.” The study was partially funded by Asarco, and some residents were leery of its findings.

In 2002, the Arizona Department of Health Services reported that the main worry in Hayden was spikes in sulfur dioxide that “occasionally pose a short-term health hazard to sensitive asthmatics. … Other exposures to contaminants in other environmental media do not appear to pose a public health hazard.”

In 2005, Asarco declared bankruptcy, effectively ending the lawsuit. The plaintiffs settled for a large amount of money overall, but an average of less than $10,000 per family. Not enough to move away. “There were people that tried and still couldn’t do it,” Betty Amparano said. “And people that did move out are starting to come back because of the economy.”

The EPA intervenes

Prodded by environmental activist Brittle and others, the EPA came to Hayden as the lawsuit was winding down. In 2007, before it ordered Asarco to start digging up soil, the agency found arsenic levels within safe limits in only one of 99 yards sampled. Seventeen of 22 attics yielded dust samples high in arsenic; 15 attics had dust high in copper, eight in lead.

Asarco, still in bankruptcy, agreed to set aside $13.5 million to fund the cleanup, which began in December 2008. At last count, soil from more than 266 yards had been dug up and replaced. In its statement to iWatch News, Asarco said it “has completed the cleanup of the soils on residential properties, public areas and vacant lots” in both Hayden and the adjoining town of Winkelman, “and, in doing so, achieved all the required cleanup levels.”

In July, however, the EPA notified Asarco that its plan for doing additional cleanup work in Hayden had “serious deficiencies,” including a lack of “meaningful” air sampling.

Several residents said that they, too, are unhappy with Asarco’s performance. In August, the company bought Monica Fernandez’s mother’s home, almost directly under a conveyor belt that carries crushed ore. “They had a big old crane that smashed the whole house,” Fernandez said. “All they did was knock it down, wet the dirt and put the rocks there.” The contamination, she suspects, is still there. “It has to be,” she said. “They covered it with the same dirt.”

Amid concerns about the cleanup, Asarco is seeking renewal of its air permit — its license to pollute. The federal government allows states to grant such permission, and ADEQ officials say they plan to affirm Asarco’s status as a minor source of hazardous air pollutants.

Asarco insists that it doesn’t meet the legal threshold for a major source: emissions of 10 tons per year of an individual chemical listed under the Clean Air Act amendments, or a combination of such chemicals totaling 25 tons annually. The company says it puts out a total of 14 tons of air toxics. And the highest amount of any one compound it reported emitting in 2010 — arsenic — was just 3.8 tons.

The EPA’s view is quite different – and could have significant implications. In its Nov. 10 finding of violation, the EPA argues that the Hayden smelter has been a major source since June 13, 2005, the date a federal pollution-control standard for copper smelters took effect. As of that date, the EPA alleges, “the Hayden Smelter had the potential to emit 10 [tons per year] or greater of Arsenic and Lead Compounds, individually, and 25 [tons per year] or greater of a combination of [hazardous air pollutants].”

Understating emissions can enable companies to avoid expensive fixes. Eric Schaeffer, former head of the EPA’s Office of Civil Enforcement, said Asarco is, in effect, being accused of dropping out of the regulatory system. “If you basically keep yourself out of the system, then you’re able to bypass [pollution] standards and avoid compliance and save a lot of money,” said Schaeffer, now executive director of the Environmental Integrity Project, which litigates against polluters. “And that, obviously, is a fundamental violation of the Clean Air Act.”

In its statement, Asarco described the EPA action as “unexpected … [and] even more puzzling because our smelter is in compliance with its air permit. In Asarco’s view, the [finding of violation] is simply incorrect.”

ADEQ Director Henry Darwin said that Asarco’s new permit will force the company to make improvements. He expressed regret that it’s taken 10 years to act: “I fully acknowledge the fact that we should have issued [a permit with more stringent requirements] quicker than we have,” Darwin said.

“I do share your concern about what emissions from this smelter could be doing to that community. We’re not sitting idly by to see what Asarco’s going to do.”

Betty Amparano’s 32-year-old daughter, Jill Corona, is skeptical. Corona, a Hayden native who lives in Tempe, called the EPA’s action “bittersweet. In some ways, it’s great that the pollution problem is now finally being acknowledged. But for many years, it seemed to be implied that there was not really a problem.”

She worries about future generations. The EPA’s case against Asarco could be tied up in court for several years, with no guarantee that the government will prevail. And even if the Hayden area is deemed to be out of compliance with the federal air standard for lead, the state could have up to five years to bring down levels of the pollutant. In the meantime, exposures will continue.

“You know, I have a cousin who’s dying of cancer,” Corona said. “Whose health is being affected today? For the residents that are living [in Hayden] now, it’s not like a water faucet that gets shut off and that’s it, that’s the end of it and you’re done. It’s not that simple.”

Howard Berkes, NPR's rural affairs correspondent, contributed to this story.

Where regulators failed, citizens took action — testing their own air

2013-04-19T14:36:05-04:00

TONAWANDA, N,Y. — For the past three decades, Jeani Thomson has been pleading with New York state officials to protect her and her neighbors from air pollution that regularly spreads into her yard from an industrial plant a mile away. Many mornings, a foul-smelling, thick fog settles around her modest house in Tonawanda, a working class town of 16,000 just outside Buffalo. The “toxic blue haze,” as Thomson calls it, smells like ammonia, sulfur and “an oily exhaust.”

She believes it has made her sick. Ailments have transformed her, she said, from a fit mail carrier who walked a 13-mile route into a survivor of multiple illnesses who takes 22 medications and now moves with difficulty on stiff legs. Though only 57 years old, she has only one lung, and half a stomach. Her doctors have diagnosed her with a rare skin rash, as well as asthma and arthritis. Though she claims never to have had a cigarette, her voice has the raspy sound of a smoker. On bad days, she says, she inhales oxygen.

“It’s not anything that I ate. It’s not anything that I drank,” said Thomson. “It’s from living here and breathing the air.”

Whether her illnesses, or anyone else’s, came from the plant’s pollution can be difficult to prove. Still, concerns about toxic emissions rallied Thompson and a small group of other local people — most of them sick, later joined by dozens of other citizens complaining of similar ailments — to force complacent regulators to clean up their air.

Residents started in 2004 by using buckets and hand-held vacuums to test the air. They found shockingly high levels of benzene. With a hint from a state regulator, they figured out the main source was a plant called Tonawanda Coke Corp., a relic of the industrial age that since 1917 has been producing material needed for smelting iron.

They enlisted the help of a plant insider to help them expose practices at the plant. They recruited residents who lived closest to the plant to report to the state and the media when plumes of soot and the odors became intolerable. And they wouldn’t give up.

It took five years of prodding before state regulators formally blamed Tonawanda Coke for the high levels of benzene and moved aggressively to enforce the Clean Air Act. Finally in 2009 the state, together with the U.S. Environmental Protection Agency, swooped down on the plant for a week-long surprise inspection. Inspectors found it in such a state of disrepair that huge amounts of benzene and other dangerous chemicals were seeping from cracks in worn-out equipment and leaky pipes.

In a cascade of civil and criminal enforcement actions since then, the EPA has accused the plant of vastly underestimating its toxic emissions, operating illegal equipment that pumped untreated toxic gas into the air and failing to use pollution controls required by its permit that would have prevented releases of hazardous particles.

The case highlights not just possible corporate wrongdoing but the risks posed to communities around the country by an environmental regulatory system that largely entrusts companies to disclose how much toxic pollution they emit, and can take years to act once violations are discovered.

State and federal records in the Tonawanda Coke case illustrate the failure of that honor system. For many years, regulators apparently had no idea the company was discharging into the air benzene, formaldehyde and other chemicals — known to be harmful to health — in quantities many times greater than the company estimated to regulators.

Even after regulators forced the firm to fix blatant sources of benzene, sophisticated measuring equipment found the solvent seeping out of the plant at a rate of 91 tons per year, according to an EPA analysis. That was almost 30 times higher than the 6,754 pounds the firm had reported to the EPA in 2009 as part of the Toxics Release Inventory. Benzene has been associated with blood disorders, infertility, and cancer, especially leukemia.

EPA officials acknowledged in interviews with the Center for Public Integrity’s iWatch News and NPR that the Tonawanda Coke case demonstrated a weakness in tracking and curbing toxic air pollution. “The monitoring and reporting systems that have been in place for many years may not be telling us everything we need to know to identify and reduce toxic air pollution,” said Assistant Administrator Cynthia Giles, who oversees enforcement.

Executives with Tonawanda Coke declined to be interviewed for this story because of pending criminal, civil and administrative cases. A lawyer representing the company, Rick Kennedy, said Tonawanda Coke denies the allegations in each case and “intends to contest the allegations vigorously in formal legal proceedings.”

Several key state and federal regulators, explaining that they are potential witnesses in the case, also refused to be interviewed.

Joe Martens, commissioner of New York’s Department of Environmental Conservation, defended the record of his agency, which eventually set up high-tech air quality monitors that documented extremely elevated benzene levels, leading to the enforcement actions. But he said such sophisticated equipment had not been available previously. So state officials had no way of knowing about the benzene, formaldehyde, and other toxic emissions seeping from leaks in equipment and piping at the plant, Martens said. “Hazardous air pollutants are difficult to detect. We didn’t have the equipment to do the type of detection — you know, police work — that EPA was able to do” later.

Judith A. Enck, the EPA’s administrator for the region that includes New York — and a former top environmental official in the state — said a larger lesson can be learned from the Tonwanda experience: Communities get cleaner air when people demand it.

“If this was in an affluent city where thousands of people lived, I think there would have been more of a laser-like focus on this earlier,” Enck said.

Many people in this community wonder why it took government agencies so long to start scrutinizing such an obvious source of toxic air. But the story of Tonawanda Coke is also a modern day parable about the clout citizens can wield when they dig in their heels and demand healthy air.

‘Why are people so sick?’

For years, some Tonawanda residents have battled itchy eyes, scratchy throats, constant headaches, and illnesses such as cancer, blood disorders, gastrointestinal diseases, miscarriages, and asthma — always wondering, often suspecting. Were these conditions in some way tied to Tonawanda Coke?

Jackie James-Creedon, who grew up within a few miles of the plant, sometimes felt a strange tightness move through her body. Her hands would turn numb; her cheeks would ache. Within a year, her doctor would diagnose her chronic body pain and intense fatigue as fibromyalgia, a neuromuscular disease.

Shortly after her diagnosis, James-Creedon read an article about a state-sponsored study in Tonawanda, which was examining the health effects of radioactive contamination left from uranium processing in the 1940s. The state found “statistically significant excesses” of thyroid, breast, and bladder cancer in Tonawanda — but said radiation wasn’t to blame.

The study got James-Creedon wondering: Was something in her hometown’s industrial environment making her sick? She remembered falling off a sled when she was 10, and into a polluted creek that reeked of chemicals; the water was so thick with pollution it was almost gooey.

Seeking answers, she visited nearby Tonawanda — and smelled the familiar odor from her youth. It’s the kind of scent that ends games on ball fields; players flee from the smell. People slam windows and stay inside when it gets bad.

Everyone, it seems, has a different way of describing it. Burning matches. Rotten eggs.

The stench reminded James-Creedon of “a bad perm.”

She met people with bronchitis, autoimmune diseases, and all kinds of cancer. Many were sicker than she was; most had no explanation for their ailments. “We were questioning: ‘Why are people so sick?’” she recalled.

As in many communities, the area lacked air pollution monitors. Few neighborhoods downwind of polluters have any reliable way of detecting whether chemicals in the air have reached an unsafe level. Nor do regulators generally do much monitoring unless citizens push for it.

Then James-Creedon learned that other communities were testing their own air with household buckets, baggies and tiny vacuums. She built the original bucket with parts from a hardware store for about $100.

When the first bucket samples came back from a lab in 2004, James-Creedon wasn’t sure what to make of them. The tests showed high levels of benzene – 54 micrograms per cubic meter of air. An official from the state Department of Environmental Conservation told James-Creedon the benzene level in the sample was 500 times higher than the state’s health guideline — .13 micrograms per cubic meter.

Roughly 50 industrial polluters have air permits in Tonawanda, but James-Creedon said the state official suggested the main offender might be Tonawanda Coke. Regulators had found no major violations at the plant, and the bucket test was a crude measurement. But it got regulators’ attention, especially after the tiny neighborhood group held a press conference downwind from the plant.

“It really stirred up a hornet’s nest,” remembered Adele Henderson, one of the original bucket testers. She remembers regulators were “pissed off” that the group didn’t warn them that they were going to blame Tonawanda Coke and a couple other plants by name.

The state did its own air samples — confirming high benzene levels in the air — then sought federal money for air monitors.

Meanwhile, James-Creedon’s group did more bucket tests. They went door-to-door in the residential streets near the plant, recruiting neighbors to monitor its pollution. Whenever the plant’s odors or plumes of black smoke appeared worse than usual, they filed complaints with the Buffalo office of the state Department of Environmental Conservation.

At first the group called itself “Toxic Tonawanda,” later, the “Clean Air Coalition of Western New York.”

With their bucket test results in hand, the fledgling activists requested meetings with J.D. Crane, hoping the Tonawanda Coke owner and CEO would agree to clean up his plant. He refused to meet.

Tonawanda Coke sits on a plateau overlooking the Niagara River. It is walled off by a guarded gate and a razor-wire fence. From the outside, it’s hard to see more than its three, tall smokestacks. The decrepit equipment that spewed benzene into the air was out of sight. So were its cracked 50-year-old ovens and a huge tar sludge decanter that overflowed on to the ground during emergencies, according to an affidavit from a federal investigator and other federal documents.

Instead of fixing leaks, plant employees would fill them with wooden pegs or cover them with metal bands or strips of cloth, according to the EPA’s July 19 enforcement order.

One member of the Clean Air Coalition was married to a volunteer firefighter in town. He told the group what he saw when he went into the plant to put out fires or respond to false alarms.

“You go in there and you think you are in an abandoned facility. That’s how run down it is,” said Lou McNett, the firefighter. So much soot hung in the air at the plant, even when he went there on a false alarm, that he’d come out blackened to his skin, despite his waterproof gear and three layers of clothing.

Often, the plumes of smoke coming from the plant would appear so big and black that the fire station received 911 calls from people who thought the place was ablaze. But when the fire trucks arrived, McNett says, the security guard wouldn’t let them in.

“Just about every time we showed up they would try to block our way,” he recalled.

A company insider surfaces: ‘Our Deep Throat’

While James-Creedon and her group were taking bucket tests, Jennifer Ratajczak and her husband, Glenn, had been visiting doctors — trying to figure out why she was so sick. Six years passed before she would be diagnosed with leukemia. On that day, in May 2006, doctors explained that her disease was not genetic and asked whether she had worked with benzene.

She never had. The question stuck in her mind.

She was just shy of her 40th birthday, with two children in elementary school whom she feared she wouldn’t live to see graduate. Eventually, chemotherapy put her in remission but she must take the pills every day of her life. The disease and the medication’s side effects leave her so exhausted that she’s had to quit working as an engineering specialist for the local gas company. Now, she says, she saves all her energy for her kids.

Several years later, Ratajczak would discover at least one way she had been exposed to benzene.

In March 2008, four years after the initial bucket test, the state held a public meeting to share the first six months’ worth of data from its air monitors. One monitor showed benzene levels more than 10 times the state average. Later results suggested even higher levels, perhaps 75 times what the state considers to be an acceptable risk. Monitors also were tracking high levels of other toxic chemicals, including formaldehyde, carbon tetrachloride, acetaldehyde and acrolein.

For Jennifer and Glenn Ratajczak, who were in the audience, the news was stunning. “It was horrific,” recalls Jennifer. “I needed answers. Is it what triggered my disease? Could it be harming my husband, who is working in the industrial area? What about my two children?”

The Clean Air Coalition, the Ratajczaks learned, had long suspected Tonawanda Coke as the main source of the poisons. At that 2008 meeting, however, state officials didn’t implicate Tonawanda Coke. Nor did they announce plans to make the plant reduce its emissions.

James-Creedon remembers feeling vindicated – the benzene problem was real – yet angry that the state was still doing nothing about Tonawanda Coke. “It was maddening,” recalled Adele Henderson, an art professor who was one of the first members of the group. “I was really irritated and frustrated.”

Not long after, Ratajczak and her husband went to their first of many coalition meetings.

“After we left, I sat in the car and burst into tears,” Ratajczak recalls. “Something deep in my heart knew there was a huge problem going on in my hometown and my conscience would not allow me to turn away.”

During that summer of 2008, the pollution from Tonawanda Coke seemed especially bad. People living near the plant complained about black smoke, a burnt rubber smell. Some swore things were worse than ever. They stopped opening their windows at night or barbequing in their back yards. They kept their children away from home as much as possible. They suffered even more from sore throats, headaches and breathing problems.

Listening to the local TV news, Ron Snyder heard the residents’ health complaints, and decided to blow the whistle on his former boss. He had worked as a manager at Tonawanda Coke for 25 years but left the plant in 2005, when the owner wanted to demote him from his post as plant supervisor.

Snyder knew the plant’s operations and pollution violations, and he kept in close contact with former coworkers. He arranged a meeting with state environmental regulators, including Larry Sitzman, the state official who had been inspecting the plant.

For Snyder, a Catholic, it was like a long-overdue confession. He spilled his guts for hours.

Sitzman’s handwritten notes from the encounter, released in response to an earlier Freedom of Information Request filed by some members of the coalition, confirm Snyder’s memory.

The former plant supervisor outlined a long list of practices at Tonawanda Coke that sent noxious emissions into the air. For instance, the plant produced a dirtier type of coke, furnace coke, at night so people wouldn’t see big the “black mushroom clouds” it created, Snyder asserted. Pollution standards are more stringent for furnace coke. And frequent power failures were shutting down the plant’s exhaust system, forcing workers to open up the ovens and release untreated gases full of benzene.

Snyder expected a hero’s welcome from regulators, but, he said, didn’t get it. He also expected them to press for more information. He said he didn’t hear from anyone for more than a year.

So he chose to sleuth for the Clean Air Coalition. He asked members to conceal his identity because he feared he could face prosecution for his own actions as a plant manager.

It was a breakthrough for the group; it finally had someone to contact when it suspected something was happening inside the plant.

“He was our ‘Deep Throat,’” recalled Adele Henderson. “I always thought it was Ron Snyder’s testimony that triggered the raid on Tonawanda Coke because he knew so much and saw so many bad things happening and so many violations. Otherwise it’s a place on the hill behind fences. There’s no way of knowing what goes on there.”

Snyder’s information gave the coalition facts to go toe-to-toe with state regulators. Its new leader, Erin Heaney, said Snyder’s inside knowledge boosted members’ confidence.

“Often it’s women going up against male engineers,” said Heaney, who succeeded James-Creedon as executive director of the Clean Air Coalition. “And to be able to go in knowing that, ‘no, we actually do know what is going on in that plant’… is really, really important.”

In 2009, Snyder said, he finally heard from state and federal investigators. He met officials on several occasions, describing in detail how the plant had long been ignoring environmental requirements. Among other things, he told them the plant didn’t have basic pollution control devices called baffles, which are required by the state.

Coke comes out of the ovens at more than 1,000 degrees and goes to what’s called a “quench tower” to be drenched with thousands of gallons of water. Giant wooden louvers sit on top of the tower to catch the toxic particles that rush out with the massive plumes of steam.

Snyder said one of Tonawanda Coke’s towers never had baffles and the baffles on the other tower fell apart long ago. It would be easy for an inspector to check whether or not they were there, Snyder said; all he’d have to do is look up in the tower. To prove this point, he went to Google Earth and showed the investigators the quench towers without any baffles covering them.

Snyder recalled that he also told authorities that every 20 to 30 minutes the plant released untreated gas from the ovens into the atmosphere through a valve that was only supposed to open in emergencies.

“That’s been spewing into the atmosphere for 25 or 30 years,” Snyder said. “The DEC and the EPA would, apparently, just walk right past it.” When inspectors were expected at the plant, he said, workers would change the settings so the valve wouldn’t go off.

Claim is a ‘bun with no burger,’ CEO tells senator

State and federal inspectors finally swooped down on Tonawanda Coke in April 2009 for that week-long, surprise inspection. They found many violations of clean air, clean water, and toxic waste laws. They documented how the plant didn’t have baffles, and they caught a worker trying to change the settings on the pressure release valve so it wouldn’t open — two of the problems exposed by Snyder. Inspectors questioned the worker, who told them he was following the environmental manager’s direction.

Two months later, in June 2009, the state held another public meeting. This time, officials identified Tonawanda Coke as the main source of the benzene plaguing the community.

Jackie James-Creedon remembered jumping to her feet and applauding.

That August, the company’s owner, Crane, wrote a letter to Sen. Charles Schumer, D-N.Y., in which Crane disputed the state’s air study claiming Tonawanda Coke was the main source of benzene.

“It’s a red herring, bun with no burger claim,” Crane wrote.

Crane blamed the benzene on traffic from nearby highways instead. He also claimed that his plant was and had always been in compliance with regulations. (A state inspector corrected the record in a letter to the plant. He noted three times the state had ordered the plant to fix air pollution violations between 1981 and 2009, and pay a single fine of $6,000.)

Crane’s letter infuriated members of the Clean Air Coalition. For the first time, the group decided to hold a rally across from the main entrance of the plant. Heaney and James-Creedon went to Albany to demand action. There, they met Judith Enck, then deputy secretary for the environment.

It turned out to be an important meeting. James-Creedon and Heaney made a strong impression on Enck, who was about to become the EPA’s top official in the region. By December, armed federal agents raided Tonawanda Coke with search warrants in what had become a criminal case.

A 20-count federal indictment charges the company and its manager of environmental controls, Mark L. Kamholz, with violating the Clean Air Act by not having baffles and by illegally operating the pressure release valve. It also charges them with obstructing justice for trying to hide their illegal use of that valve.

The indictment alleges Kamholz “did corruptly influence” EPA’s inspection “by instructing a Tonawanda Coke Corporation employee to conceal” that the pressure release valve “during normal operations, emitted coke oven gas to the atmosphere,” in violation of the plant’s permit. The indictment also charges the company with violations of hazardous waste laws.

The company and Kamholz pleaded not guilty to the charges, which are still pending.

Rick Kennedy, Tonawanda Coke’s lawyer, said the company could not “tell its side of the story” because of the pending legal cases against it. But he stressed that the company has been cooperating “in good faith” with the regulators to reduce pollution despite the “serious nature of our disagreements.”

Rodney Personius, Kamholz' lawyer, said the government's "very aggressive position" against the company and his client reflected the "tremendous amount of pressure from the community." The case, he said, was likely to go to trial because the company has "meritorious defenses."

Since the raid, the EPA has been sending Tonawanda Coke official notices of its many alleged violations and demanding that it install pollution controls, fix leaks, and clean up toxic wastes.

The EPA said it proved the company was pumping out benzene at a rate of 91 tons per year. It did that by requiring Tonawanda Coke to pay hundreds of thousands of dollars for sophisticated monitoring by a device that uses lasers to measure concentrations of gases.

The ultraviolet Differential Absorption Lidar, or DIAL test, showed what the people of Tonawanda had suspected for years: Tonawanda Coke wasn’t releasing three to five tons of benzene into the air, as it had been reporting to regulators. Rather, it was pumping out benzene up to 30 times that amount, yearly, according to the EPA.

The DIAL test also gave the EPA support for its determination that Tonawanda Coke should be classified as a “major” source of benzene, which toughens its pollution control requirements. EPA’s threshold for being a major source: 10 tons per year of an individual toxic chemical, or 25 tons total of air toxics.

In July, the company agreed to an EPA order that requires it to reduce its benzene emissions by two-thirds by 2012. That agreement describes a plant still in disrepair: Many holes in piping and equipment were patched with cloth and metal bands or wooden plugs and still leak, for instance; the lid of a huge tank that catches liquids from the coke oven exhausts was falling apart, allowing toxic gases to flood on the ground.

“The poor mechanical and structural integrity of these components and equipment, and the air pollution control practices utilized, resulted in increases in preventable fugitive [coke oven gas] emissions, including emissions of VOCs and benzene,” EPA wrote in the order.

This fall, state officials told the community that the monitors downwind from the plant already show significantly reduced levels of benzene and other toxic chemicals. They estimate about half of that improvement is due to lower production at the plant. Improved pollution controls at Tonawanda Coke also may account for it.

Even so, many of Tonawanda’s pollution fighters are not satisfied with the government’s deal. “Benzene is very nasty. It’s a carcinogen,” said James-Creedon. “It is not enough for my community. The safe level for benzene is zero.”

This story was reported by Kristen Lombardi of the Center for Public Integrity and Elizabeth Shogren and Sandra Bartlett of NPR, and was written by Shogren. Jill Rosenbaum also contributed to this article.

Industry wields sway over air pollution rules, enforcement

2013-04-19T14:36:05-04:00

When the top environmental regulator in Kansas rejected its bid to build two new power units in 2007, citing health concerns, Sunflower Electric Power Corp. refused to take no for an answer. When the governor vetoed bills that would have paved the way for construction in 2008 and 2009, Sunflower again refused to relent.

The company’s persistence paid off. In 2009, the new governor approved construction of a new coal plant in the tiny city of Holcomb, so long as Kansas legislators backed renewable energy policies at the same time. The state regulator who initially denied Sunflower’s permit? He was let go.

Sunflower said it won the permit on merit, and that political influence was not a factor.

Yet the company’s success is a telling snapshot of how, when industry flexes its muscles over Clean Air Act issues, it often wins. From Kansas to Louisiana to Texas, Wisconsin and Ohio, community groups have fought new plants, expansions and chronic emissions – only to see industry score victories with regulators and politicians.

“We’re not protecting public health today,” said Jim Tarr, an air pollution consultant in California who worked as an engineer for the Texas Air Control Board in the 1970s. “One of the primary reasons we’re not is that the environmental agencies have been co-opted by the people doing the polluting.”

Industry’s influence plays out at every step of the process: From the campaign contributions it spreads to sway policy to its role shaping clean air rules to its resistance to enforcement actions brought by regulators.

Its reach is deeper than most realize.

Two just-published reports – one from academic researchers, the other from the Environmental Protection Agency’s own inspector general – detail industry’s role in shaping Clean Air Act regulations meant to protect communities from dirty air.

The academics’ study – Rulemaking in the Shade: An Empirical Study of EPA’s Air Toxic Emission Standards – examined the level of input by industry and public interest groups at key stages as the EPA wrote rules for more than 100 major industries. Those stages: Before a proposed rule was published; once notice was given and the public weighed in; and during the final rule-writing process.

The results surprised even the study’s authors:

At the early, pre-proposal stage, industry had an average of 84 informal communications with the EPA per rule compared to less than 1 for public interest groups;
During the public comment period, industry provided more than 8 of every 10 comments;
Changes to the final rule favored industry 4-1 over those benefiting public interest groups.

“We expected imbalance in engagement, but did not imagine it would be that badly skewed,” said co-author Wendy Wagner, a professor at the University of Texas School of Law.

For every two industry comments, she said, one change was made weakening the final rule.

Industry said its motivation is no secret.

“It’s survival,” said Robert Bessette, president of the Council of Industrial Boiler Owners, a trade group representing manufacturers that use boilers to power their operations. “Industry, when pushed up against the wall, reacts.”

The council is pushing back against a proposed EPA rule to curb toxic emissions from boilers – an effort that includes prodding Congress to pass legislation and meeting with the EPA and the Office of Management and Budget, Bessette said.

Political contributions help ease industry’s access. Thirteen states house three-fourths of the nation’s most worrisome air polluters – facilities listed on an EPA “watch list” of alleged violators that haven’t faced timely enforcement. Those companies, their corporate parents and executives have made nearly $60 million in overall state campaign contributions since 2006, the Center for Public Integrity found.

Facilities in the six congressional districts with the greatest number of watch list sites contributed $120,350 to their federal representatives since 2006.

Uneven state enforcement

In some states, industry influence is clear.

The EPA IG’s recent report, EPA Must Improve Oversight of State Enforcement, documents breakdowns in Clean Air Act enforcement that can translate into fewer health protections for communities in the shadow of power plants, refineries and chemical manufacturers.

“When neither states nor EPA takes enforcement actions when needed, these health benefits are not realized and premature deaths and illnesses are not prevented to the extent that they could be,” the IG concluded. “As a result, EPA cannot assure that Americans in all states are equally protected from the health effects of pollution or that enforcement of regulated entities is consistent nationwide.”

The IG said a culture of protecting industry was clear in some states with the weakest records of enforcing the Clean Air Act, such as Louisiana.

“State, EPA regional, and external interview responses attributed Louisiana’s poor performance to several factors, including a lack of resources, natural disasters, and a culture in which the state agency is expected to protect industry,” the IG found.

The EPA did not respond to the Center's questions about Rulemaking in the Shade. In its reply to the IG’s report, the agency questioned some of the research methodology – but ultimately agreed “that state enforcement performance varies widely across the country.”

“We also agree that there are steps EPA Headquarters and regional offices can and should take to strengthen our oversight and address longstanding state performance issues,” the EPA replied.

That industry weighs in with frequency and success is no surprise to environmental activists, people who live near plant fence-lines and some political leaders who have long tangled with Big Oil.

“The fight that industry wages against any kind of threat to their pollution is across the board,” said James "Jim" Cox, a retired state senator from southwest Louisiana. “It boils down to the control the industry has of the community. It’s a jobs situation. It’s a well-organized lobbying situation.”

Health fears in Mossville

One long-running battle centers on Mossville, a small African-American community founded in the 1790s across from Lake Charles, La.

Fourteen major industrial facilities surround the community, including an oil refinery, a coal plant, chemical manufacturers and one of the largest clusters of vinyl production facilities in the United States.

For 15 years, residents have been asking government and industry to relocate them from the powerful odors and toxic chemicals released by the plants, citing reports showing dangerous levels of dioxins in the air. Dioxins, researchers say, can cause cancer and reproductive damage and slow child development.

In 1998, the federal Agency for Toxic Substances and Disease Registry found that Mossville residents had an average dioxin blood level three times above that in the typical U.S. community.

The report, however, did not identify the source of the exposure. A later ATSDR report said residents in the neighboring parishes of Calcasieu and Lafayette had typical blood dioxin levels. But, residents say, that report included a larger group outside Mossville. Their health fears continue.

Wilma Subra, a chemist from Louisiana who studied the community, produced a report linking dioxin levels to local industry.

As Mossville residents pressed for answers, the government continued to issue permits fueling industry’s growth. The EPA’s enforcement website lists more than a dozen facilities in Lake Charles out of compliance with the Clean Air Act.

In 2005, the people of Mossville filed an environmental racism petition with the Inter-American Commission on Human Rights, part of the Organization of American States. When the commission accepted the complaint last year, it became the first such U.S. case to move forward.

“Filing the human rights petition is really our last resort,” said one of the community’s lawyers, Monique Harden, co-director of the public interest law firm Advocates for Environmental Human Rights.

“It’s been 15 years of evolving strategies,” Harden said. “Residents want a voluntary relocation program that they help to develop. They want medical care services. They want pollution reduction and cleanup of contaminated sites. So it’s been years of trying to get both the industry in the Mossville area and governmental agencies to meet the community on these remedies.”

Some residents have been relocated, but the petition seeks a more far-reaching move-out for those who want it. It asks that the U.S. “refrain from issuing environmental permits and other approvals that would allow any increase in pollution.”

Lake Charles-area companies deny causing any harm to residents, saying they strive to curtail emissions.

“We strongly support efforts to reduce dioxins in the environment,” Georgia Gulf Corp., which makes a raw ingredient in polyvinyl chloride, or PVC, wrote on the Business & Human Rights Resource Centre website.

“Our industry is responsible for quality products that consumers want, buy and use every day. Medical supplies, medicines and pharmaceutical products, computer keyboards, PVC pipe, automobile dashboards, toys and sporting goods and food wrap are products Louisiana plants help make, and these products in turn help Louisianans enjoy a healthy and productive lifestyle,” the company wrote.

Echoing other facilities, PPG Industries said it operates “in a manner that is protective of public health, safety and the environment.” ConocoPhillips, the world’s fifth-largest refiner, declined an interview request but cited its website, saying it is committed to working with its neighbors.

‘They love their polluters’

In some communities, activists feel like lone wolves.

In Longview, in East Texas, the Eastman Chemical Co. plant is among the top national emitters of ethylene glycol, chloromethane and chloroform – compounds that can damage the nervous system, liver, kidneys or lungs. EPA records show $420,004 in Clean Air Act penalties levied in the last five years against Eastman, which manufactures more than 40 major chemical and polymer products.

Eastman said it diligently monitors emissions and its Longview site meets air-quality standards. “Protecting air quality is an essential and complex part of Eastman’s environmental program,” the company said in a statement. “The men and women at Eastman not only strive to improve Eastman’s compliance with the Clean Air Act because it is the law, but also because we and our families live in the adjacent communities.”

Over a five-year period from August 2005 to August 2010, no residents filed complaints about the facility with the Tyler office of the Texas Commission on Environmental Quality, records show.

That is not surprising, some say, in a region proud of the economic jolt industry provides, where Eastman Road runs astride the plant and where, in 2009, the Texas Chemical Council awarded Eastman its “Excellence in Caring for Texas" award. The plant employs more than 1,500, placing it among the largest employers in a region replete with industry.

Tammy Cromer-Campbell, a professional photographer and environmental activist, is a rare breed in Longview: a critic who stands up against pollution. She said the mission has been lonely. “They love their polluters,” Cromer-Campbell said with a laugh while driving near Longview’s industrial hub.

A co-founder of a group called WECAN – Working Effectively for Clean Air Now – she rose up at meetings of the Northeast Texas Air Care, a cooperative association of local governments and industries. Cromer-Campbell found herself the outsider looking in.

“Whenever I go to those meetings, I don’t have a crowd of people behind me, supporting me. It’s all industry,” she said. “I got burnt out. We couldn’t get a lot of other people to join me.”

Picking up the slack

Some Texas officials are frustrated, too.

Two veteran lawyers with the Harris County Attorney’s Office – whose jurisdiction includes Houston and the nation’s largest petrochemical complex – seem to be in perpetual conflict with the Texas Commission on Environmental Quality.

One, Terry O’Rourke, called the agency “a lap dog for polluters” and said state regulators are too quick to overlook companies that poison the air and water. O’Rourke said his office, which represents the Harris County Pollution Control Services Department, has picked up the slack.

“We have to stop the pollution at its source,” said O’Rourke, who began prosecuting polluters as an assistant state attorney general in 1973. “You do it the same way you write speeding tickets. If you don’t enforce the law, everybody will be driving 100 miles per hour.”

His colleague, Rock Owens, said the TCEQ “treats the regulated community as if they are customers. It’s always with an eye toward the convenience and the bottom line of the major players.”

Owens cited a recent example. On five occasions from April 2008 through March 2010, according to a civil complaint drafted by the county attorney’s office, a Shell Chemical plant east of Houston “illegally released over eight tons of toxic petrochemicals into the air in Harris County, including known carcinogens such as benzene and butadiene. . .”

Shell, however, failed to report the releases to the county within 24 hours, as required. The TCEQ fined Shell $71,900 for one of the incidents in 2008. Owens’s office deemed this insufficient and went after Shell, preparing a complaint in 2010 that sought more than $6 million in penalties.

The case was settled this year, with Shell agreeing to pay $500,000 to the county. O’Rourke said he remains annoyed the TCEQ didn’t move more aggressively.

“That, to me, is fundamentally offensive,” O’Rourke said. “TCEQ slapped their wrist. We’ve got kids who play in schoolyards in the shadow of these [plants]. Most of them are black and brown, and a lot of them are poor. Just because they’re poor doesn’t mean they should have to breathe crap.”

He added: “We can have the largest petrochemical complex in the United States and still have a clean environment. They are not incompatible.”

In a written statement, Shell said that while it “disputes the claims and allegations made by Harris County, we are complying with the settlement in the interest of securing a timely and effective resolution to this matter.”

The TCEQ said in a statement that it has fined Shell more than $1.4 million over the past five years as a result of 26 enforcement orders, many involving “unauthorized emissions and failure to comply with permitted emission limits.”

The TCEQ “emphasizes compliance to protect our citizens from harm, coupled with swift, sure and firm enforcement for those who do not comply,” the statement said.

Owens scoffed at the amount of the TCEQ penalties, saying large companies like Shell consider them “just another part of doing business in Texas. Pay a little fine, go about your way – that’s not an effective deterrent.”

Shell, which reported profits of $18.6 billion in 2010, cited $7 billion in profits in the third quarter of 2011 alone.

Working Washington

Big industry pays big lobbying fees to press its agenda in Washington.

The Washington lobby shop for San Antonio-based Valero Energy Corp., for instance, spent $496,000 in the first three quarters of this year pressing environmental issues ranging from air and water quality to fuel specifications.

The company also hired outside lobbyists to work the aisles of Congress and federal agencies, according to Senate lobbying disclosure records.

One firm, Bracewell & Giuliani, spent $140,000 lobbying for Valero on “clean air, energy legislation and other environmental issues relating to the refining industry.” Among the lobbyists is a former acting general counsel for the EPA.

Six Valero plants – five refineries and one ethanol plant – are on the EPA’s November Clean Air Act watch list.

Still, the company's message to its shareholders has been reassuring. Even if "one or more [enforcement actions] were decided against us, we believe that there would be no material effect on our financial position or results of operations,” Valero said in its 2010 annual report.

A Valero spokesman declined to comment, saying, “Our advocacy efforts are outlined in required filings.”

‘There were abuses’

Industry often prevails over critics – and, sometimes, regulators.

In Holcomb, Kan., residents so far have been unable to stop the Sunflower power plant even after the state initially shot it down.

After Roderick Bremby, then head of the Kansas Department of Health and Environment, denied Sunflower’s initial permit application, project supporters pushed bills in the state legislature clearing the way for construction.

In 2008 and 2009, Democratic Gov. Kathleen Sebelius vetoed the bills.

Less than a month after an April 2009 veto, Sebelius left to become secretary of the U.S. Department of Health and Human Services. Lt. Gov. Mark Parkinson took over, and, by May 4, had struck a deal with Sunflower.

Before the plant could be built, it had to get a permit – a lengthy process allowing public input. The clock was ticking: If the permit wasn’t issued by January 2011, new rules would require the plant to do more to reduce greenhouse gas emissions.

In November 2010, as the January deadline loomed, Parkinson fired Bremby.

In a statement the week after the firing, Parkinson said the decision wasn’t related to the Sunflower permit. “When evaluating the permit application,” Parkinson said, “what I have told the acting Secretary is simply this: I don’t care whether you approve the permit or not, but I do care that Kansas follows the laws and regulations governing the process.”

But Bremby, who is now commissioner of the Connecticut Department of Social Services, said during a speech at a Kansas community college this February that the permit approval process “was not a benign, pristine, routine bureaucratic process. Unfortunately, there were abuses.”

On Dec. 16, 2010, the Kansas department approved Sunflower’s permit.

Earthjustice, a nonprofit environmental law firm, soon challenged the permit in court, accusing state officials of rushing the permitting process because of pressure from Sunflower and the governor’s office. The result, the firm alleged, was a flawed permit.

Among the concerns expressed in Earthjustice’s legal brief: State regulators allowed Sunflower to underestimate the amount of toxic air pollution it would release, shielding it from requirements to install better pollution controls.

Sunflower spokesperson Cindy Hertel said the permit “was thoroughly vetted” by state regulators. “As far as influencing anyone, we certainly did not,” she said.

Some in Holcomb want the new plant for the economic boost Sunflower promises will come, but others are worried. Lee Messenger, who lives a few miles from the current plant and the proposed site for the new one, fears the expansion will drain the town’s water supply and pollute the air.

“We don’t get a chance to vote on anything,” said Messenger, 81. “These politicians like to think we elected them to take care of us. But they take care of themselves first. “

Kansas regulators declined to comment on Sunflower’s permit, citing the ongoing court case. In a brief, lawyers with the state attorney general’s office wrote, “The accusations of political bias and procedural impropriety are factually unsupportable in the administrative record.”

Business-friendly regulators

Some grassroots groups worry that state environmental agencies lean too heavily toward business interests.

In Wisconsin, Scott Walker swept into the governor’s office in 2010 on a message of job creation. Soon after, he appointed Cathy Stepp, a former Republican state senator, to head the state’s Department of Natural Resources.

Stepp had been a vocal critic of the department she now leads. In June 2009, she posted on a conservative blog that some who worked at the state agency “tend to be anti-development, anti-transportation, and pro-garter snakes, Karner blue butterflies, etc. … So, since they're unelected bureaucrats who have only their cubicle walls to bounce ideas off of, they tend to come up with some pretty outrageous stuff that those of us in the real world have to contend with.”

DNR officials said Stepp was unavailable for an interview. The department’s No. 2 official, Matt Moroney, said that before joining the department, Stepp “was representing a constituency. She was listening closely to some of her business friends and looking at how to improve DNR.”

Her current job, he said, “is a completely different role for her.” Stepp has focused on cutting waste and streamlining the agency. This October, department officials testified in favor of a bill in the state legislature that would restrict the number of times regulators could ask companies for more information on a permit application. It would also impose stricter time limits for the department to approve permits.

Environmental groups say the department’s new approach, coupled with tightening budgets, will undermine attempts to curb pollution. “They are going to these public hearings and advocating for taking their own authority away,” said Shahla Werner, director of the state’s Sierra Club chapter. “It’s surreal to watch.”

Paint-eating pollution

Middletown, Ohio, has lived under the cloud of AK Steel for nearly a century. The largest employer in the Ohio town 40 miles north of Cincinnati, AK Steel has for decades pumped out pollution that takes the paint off residents’ cars and settles in their siding, some say.

“It got into people’s gardens, and kids playing in the yard would come in with their feet black from the soot,” said longtime resident Rachael Belz.

In 2000, the Department of Justice sued AK Steel over violations of the Clean Air and Clean Water acts. The Ohio Environmental Protection Agency joined the suit, which settled out of court and required the company to clean up Dicks Creek, which runs between the facility and a neighboring school. AK Steel committed to $66 million in pollution-control upgrades.

The facility remains on the EPA’s Clean Air Act watch list, and some say problems linger. “We still have soot in our house,” said Belz, who suffers from asthma. “You can’t sit outside on your porch for more than 10 to 15 minutes without crap flying into your coffee.”

An AK Steel spokesman said the company does not know why it is on the watch list and has complied with regulations. He declined further comment.

During the civil case, residents launched a campaign to pressure the company to meet its promises. Elected officials, community organizer Belz said, made themselves scarce.

But politicians, from the city council to the governor’s office to U.S. Rep. John Boehner – a regular beneficiary of AK Steel contributions – were on hand to cheer the company’s 2010 expansion plan. Boehner did not reply to interview requests.

“We do our campaigns in part,” Belz said, “because we can’t count on our politicians.”

Paul Abowd, Rachael Marcus and Fred Schulte contributed to this report.

VIDEO: Toxics in the air, worry on the ground

2012-02-06T15:01:41-05:00

Two decades ago Congress strengthened the Clean Air Act in an attempt to limit emissions of some of the most hazardous chemicals. But an investigation by the Center for Public Integrity's iWatch News and NPR has found that the toxic pollution persists in hundreds of communities, including two cities in Pennsylvania. This video profiles those cities.

Interactive: What’s your potential risk from air pollution?

2012-02-06T15:01:41-05:00

Explore how air pollution may affect your community in this map

IMPACT: EPA posts secret 'watch list' that includes chronic polluters

2012-02-06T15:01:41-05:00

The Clean Air Act “watch list” is secret no more.

Just days after the Center for Public Integrity's iWatch News and NPR reported that the U.S. Environmental Protection Agency maintains an internal list that includes serious or chronic violators of air pollution laws that have not been subject to timely enforcement, the EPA has posted the September and October watch list on its website.

The agency also has begun to publish watch lists that include serious or chronic violators of the Clean Water Act, governing the release of pollutants in waterways, and Resource Conservation and Recovery Act, involving hazardous waste disposal.

The EPA cited iWatch News' request for the Clean Air Act watch list, later published for the first time as part of a series on air pollution afflicting hundreds of communities, and said the agency would publish the lists as a demonstration of its commitment to transparency. However, important details on why each polluter is on the list will continue to be kept confidential, the agency said.

Some companies and their lawyers are watching the development closely because it may yield signs of potential legal action, as well as more general clues about the Obama administration's enforcement priorities.

"We would expect environmental groups to scrutinize facilities on the list carefully as they consider potential citizen action suits," wrote lawyers at Washington, D.C., law firm Arnold & Porter in an advisory to clients. "The list may also provide fodder for plaintiffs' attorneys seeking to bring toxic tort suits." The lawyers, Jonathan Martel, Michael Daneker and Joel Gross, also speculated that energy extraction industries — oil, coal and gas, including hydraulic fracturing — "might be especially prone to inclusion" on the Clean Air Act watch list.

As iWatch News reported, the Clean Air Act watch list illustrates the extent to which Washington is aware of the failure of states and the EPA to crack down on localized sources of hazardous airborne chemicals known as air toxics, even when violations have continued for years.

EPA officials said facilities on the Clean Air Act watch list have not been subject to enforcement actions for at least 270 days following the discovery of a violation — a delay of nine months.

According to the latest available data, the EPA knows of more than 1,600 “high priority violators” of the Clean Air Act — sites that regulators believe need urgent attention.

Until iWatch News and NPR obtained the July and September versions of the Clean Air Act list by filing a Freedom of Information Act request, the documents had only been circulated within the EPA.

Officials told iWatch News that the agency previously worried that publishing the list of alleged violators would unfairly stigmatize some of the companies who were on the list. At the top of each list now featured on the EPA’s website, the agency states that “being on the Watch List may not mean that the facility has actually violated the law only that an evaluation or investigation” has led regulators “to allege that an unproved violation has in fact occurred.”

An EPA spokeswoman, citing the original Freedom of Information Act request from iWatch News for the watch list, noted “the EPA’s commitment to transparency.” She said deciding to post updated versions is intended “to allow the public direct access to the list, along with the necessary and accurate explanations of what the list represents, what it does not represent, how it is used and important data caveats.”

John Walke, clean air director at the Natural Resources Defense Council, said publication of the list by iWatch News already has had an effect. Impact of the Poisoned Places series, he said, has been “positive and widespread, with greater awareness surrounding the revelation of these watch lists and reporting on them, follow up inquiries by local media, citizens and local officials.” He said he hopes the EPA monthly posting of the lists will lead to “greater attention to compliance and public health once the spotlight is placed on these facilities, to explain whether they are protecting their communities.”

For all the EPA’s new openness about the identities of polluters on the lists, however, the agency said it will shield from disclosure the specific reasons each is included on the list. That will require some sleuthing.

Some violations for the facilities may be found in the EPA’s Enforcement and Compliance History Online database, but “enforcement decision-making information needs to be kept confidential so that the integrity and effectiveness of enforcement actions are not undermined,” said the spokeswoman.

Environmental organizations questioned that rationale. “Law enforcement need not be a secret enterprise,” said NRDC’s Walke. “Too often there is inadequate enforcement taken by state and local officials against local business” because of relationships with regulators and other political and economic considerations.

Some consider publication of such information as important safeguards for the public – especially during economically troubled times when regulatory agencies are being criticized for costing Americans their jobs and saddling companies with expensive burdens. Already, as iWatch News reported, many state environmental agencies have insufficient resources, and have failed to receive billions of dollars for enforcement contemplated in the Clean Air Act.

Now, as government streamlines and politicians seek to curb the reach of regulators that effect could be amplified. “The failure of the supercommittee will mean drastic across-the-board budget cuts at EPA and other agencies that will cripple law enforcement of health and safety standards in this country,” said NRDC’s Walke. “As the NPR and CPI series showed, America is already failing to enforce existing environmental laws sufficiently to protect all of us.”