By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
One of the state's most outspoken critics of cement-kiln regulation is Neil Carman, who spent 12 years investigating pollution cases for the TACB. Carman is now the Air Quality Program director for the Lone Star chapter of the Sierra Club in Austin.
"The EPA and the states have been pretty sloppy in allowing these cement plants to operate," Carman says. "Cement kilns are like dirty old Model Ts, at least the older wet-process kilns like [those at] TXI. Today, if you want to build a cement plant, you've got to meet a whole new, tougher set of standards. So it's easier to keep these old Model T facilities running."
Cement kilns, Carman says, should be required to install additional cleaning equipment on their stacks and additional monitors to track what they are spewing into the air, just like commercial incinerators are required to do.
But state officials say those measures are unnecessary because TXI's kilns burn wastes longer--and at higher temperatures--than commercial incinerators, so most of the waste is destroyed before it goes up the smokestack.
"We don't necessarily prescribe the type of technology. We just enforce the fact that they have to meet the standard that is in the regulation," says Bill Shafford, the permit coordinator in the TNRCC's industrial and hazardous waste division. "We do the same review for a commercial hazardous waste incinerator as we would for a hazardous waste-fired cement kiln."
In recent years, TXI has blanketed Midlothian and surrounding communities with advertisements and promotional material, trying to persuade citizens that its "resource recovery" and "recycling" program abides by strict government regulation.
Last June, for example, TXI took out a full-page ad in the Midlothian Mirror to reprint a letter from Michael Shapiro, director of the EPA's office of solid waste. "EPA says standards are far more stringent for cement kilns than for commercial incinerators," the ad stated in large block type.
A letter from such a high-ranking EPA official certainly appears convincing, but until recently both the EPA and the TNRCC were saying something quite different--that cement kiln standards are too weak.
In 1995, EPA administrator Carol Browner, appearing on the MacNeil/Lehrer NewsHour, said she wanted to clamp down on cement kilns. "We have one set of standards for hazardous waste incinerators. We have another, weaker set of standards for cement kilns, boilers, industrial furnaces--which are also burning hazardous waste," Browner said. "It is a combination of toxic soup that is being burned in these facilities...and we think it should be done according to standards."
Browner had made the subject of hazardous waste her "highest priority" two years earlier, when she ordered that cement companies like TXI apply for permanent permits to burn hazardous waste.
The May 18, 1993, order gave the EPA's regional directors 18 months to "call in" temporary permits like the one TXI had been using since 1987. The order froze the number of cement kilns that could burn hazardous waste while the agency re-examined its national waste strategy. A month later, TXI submitted its application for a permanent permit. Since then, the EPA has decided to let state agencies--in this case the TNRCC--undertake the costly and time-consuming burden of deciding whether to issue permits.
Texas officials at the time agreed with Browner. In 1993, the TNRCC held an unprecedented, seven-hour public hearing at the Arlington Convention Center. Although the hearing had no official weight, it was the first time Texas citizens were allowed to vent their concerns about TXI's burning of hazardous waste.
At the end of the hearing, TNRCC officials promised, in part, to "level the playing field" between cement kilns and incinerators and to explore new ways to dispose of cement-kiln dust.
In November 1994, however, the face of the agency changed. Governor Ann Richards, who in 1991 had ordered a statewide moratorium on new permits for waste-burning by cement kilns, lost to Republican George Bush.
Bush replaced Richards' three TNRCC commissioners with his own appointees--Barry McBee, John Baker, and Ralph Marquez, a former lobbyist whose clients included TXI. (In response to public criticism, Marquez has indicated that he will not vote when the TXI permit request reaches the board.)
In December 1994, Dan Pearson took over as the agency's executive director. Pearson, a certified public accountant, previously worked in the state comptroller's office and had no experience running an environmental agency. (The Observer's request to interview Pearson was turned down by TNRCC public information officer Terry Hadley.)
With the new commissioners in place, the TNRCC never followed up on its promises to explore tougher standards for cement kilns. Instead, the agency finished its internal review of TXI's permit application in February, and announced that it was ready to launch the grueling public hearing process.
Since that announcement, both TXI and the Downwinders have been girding for their greatest battle to date.
Although TXI has suffered through some uncomfortable moments in the spotlight, until now it has never been legally required to answer specific questions from the public about its hazardous waste program.
In order to obtain its new permit, it must.
Two administrative law judges have been assigned to preside over the permit hearing process, which will proceed much like a civil court case. TXI will play the role of defendant, and a coalition of citizens, most from Midlothian, will act as plaintiffs or "parties." The parties were named last month during a day-long hearing that took place in Midlothian.