By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
Beneath the smokestacks of Texas Industries' Midlothian plant, four giant kilns operate 24 hours a day, seven days a week. The massive ovens burn at the hellish temperature of 2,800 degrees--hot enough to bake rock. A mixture of limestone, shale, sand, and water is blended and cooked until it forms dry crystals called "clinker." Mixed with gypsum, the clinker will become Portland cement.
When Texas is booming--like now, with people and companies moving in, wanting more houses, offices, and highways--the plant churns out about 2 million tons of concrete a year. TXI has literally laid the foundation for cities across the Southwest. Countless buildings, roads, and bridges are made from TXI's concrete. Dallas City Hall, the Morton H. Meyerson Symphony Center, and the brand-new J.C. Penney headquarters building in Plano are all built of it. TXI's cement even repaired the Alamo.
The seemingly dull business has made TXI very, very rich. It is the largest concrete producer in Texas, and the Midlothian plant is the largest in the state--its towering smokestacks rising from cow pastures about 30 miles southwest of Dallas.
The plant is also the largest industrial air polluter in North Texas, pumping out tens of thousands of pounds of metals and other debris each year, according to the government. On still days, the pollution drifts upward. More often, winds carry the plant's emissions to the northeast, over Cedar Hill, DeSoto, and Duncanville, and into the very heart of Dallas. At night, spotlights illuminate the plumes from the plant that never sleeps.
Keeping the kilns burning requires tremendous amounts of energy, and the Midlothian plant is notable in that regard as well. It is the only concrete plant in the state which burns hazardous waste, a practice it began 10 years ago when a change in federal law opened the door for cement producers to use waste as fuel.
Instead of paying for coal or natural gas to fire its kilns, TXI actually charges other companies to burn their hazardous waste. As a result, the emissions coming from TXI's smokestacks are more sinister than those of a typical plant, laced with pollutants like arsenic, cadmium, mercury, and lead released during the burning of TXI's toxic soup.
Now, the company wants permission to more than double the amount of waste it burns. TXI is seeking a permit that would allow the Midlothian plant to become the largest burner of hazardous waste in the United States.
Standing between TXI and its permit is the Texas Natural Resource Conservation Commission, which must decide whether to grant the company's application. Remarkably, this marks the first time in the country's history that citizens in any state will have an opportunity to contest a cement plant's request for a hazardous waste burning permit.
There is stunning ignorance of the potential health effects of both TXI's current operations and its proposed expansion. Next week, in the second part of this special report on TXI, the Dallas Observer will examine what is known--and not known--about the plant's effects on the health of those living near it.
There is little reason to believe that the TNRCC--governed by a three-member board that includes a former TXI lobbyist--will ultimately deny the company's permit.
The agency has already announced that it believes the plant poses no threat to the environment. Rejecting TXI's permit would in effect require the TNRCC to repudiate its own public assurances that the plant is safe.
But since TXI began burning waste in 1987, people who work and live near the plant have reported a wide array of health problems, including an inexplicable number of babies born with Down syndrome, an increase in asthma and other respiratory problems, and a bizarre string of premature deaths and deformities among farm animals.
None of the health problems have been directly linked to TXI's plant, but they are occurring often enough to raise grave concerns about the plant's effect on those living within windfall of its ceaseless incinerators.
A small but persistent group of citizens and environmentalists believes that TXI is pumping out poisons that ultimately will create a Superfund site. For years, they have waged a steady, grassroots campaign to force TXI out of the hazardous waste business. The American Lung Association and national Sierra Club have weighed in with the plant's opponents.
But at this most critical moment in TXI's history--when the state can either halt the toxic burning or give TXI its blessing to continue the practice into the next century--plant opponents appear to be on the brink of near-total defeat.
Flush with two years of record-breaking profits, TXI is outspending and outmaneuvering its opponents at every turn. In Austin, TXI lobbyists easily defeated a legislative effort this year that would have required TXI to meet stricter regulatory standards. In Dallas, TXI lawyers recently beat back a class-action lawsuit brought by citizens.
To placate those breathing TXI's emissions, company spin doctors are waging an aggressive public relations campaign touting TXI as a champion of the environment. An 18-month blitzkrieg of advertisements and goodwill gestures has polished the company's once-tarnished reputation, and TXI has successfully courted elected officials, even giving the mayor of Midlothian an executive job at one of its subsidiaries.
On December 1, two administrative law judges are set to begin taking testimony on TXI's permit request. It is the last chance opponents will have to halt, or curtail, TXI's hazardous waste program. For those who fear the plant, the hearing will be nothing less than the final battle in a seven-year war against the devil's fire.
The city of Midlothian, population 5,500 and growing, proudly calls itself the "Cement Capital of Texas." A cement sign outside Midlothian City Hall says so. It is the only city in the nation that is home to three cement companies--North Texas Cement; Holnam Texas, LP; and, of course, TXI.
But "The Hazardous Waste Capital of the Nation" may soon be a more appropriate moniker. Already, TXI is the third-largest hazardous waste incinerator in the nation, according to EI Digest, an industry publication. Every day, freight trains and tanker trucks rumble along the town's edges carrying poison cargoes to the plant on Highway 67.
Most of the waste comes from elsewhere in Texas, but some is imported from California, New Jersey, Illinois, Arizona, and Colorado, according to copies of TXI's 1990-1993 shipping reports. The company has even accepted waste from as far away as Puerto Rico, according to an April 18, 1996, article published in the San Juan Star.
Under the permit it is seeking, TXI could burn up to 270,000 tons of hazardous waste every year for the next 10 years. The company is also asking for permission to increase the amount of waste it stores on its property by 290,000 gallons, to a total of 640,000 gallons.
By comparison, the nation's reigning champion for burning hazardous waste--the Rollins commercial incinerator in Deerpark, Texas--burned 102,000 tons in 1995. If TXI burns only half of what it is seeking in its permit, it will easily surpass Rollins and become the country's largest waste incinerator.
The tonnage figures alone may be startling, but what makes up that tonnage is even more telling. If granted its new permit, TXI could dramatically increase the amounts of toxins it burns, including:
*Arsenic: up from .49 tons to 4 tons per year
*Beryllium: up from .0022 tons to 1 ton a year
*Cadmium: up from .42 tons to 51 tons a year
*Mercury: up from .04 tons to 2 tons per year, and
*Lead: up from 25 tons to 435 tons a year.
Those metals have all been linked to a stunning array of health problems, including cancer, lung disease, birth defects, nervous system problems, and organ failure.
Even more important than what the company will burn is what comes out of its smokestacks. The permit will allow TXI to increase the amount of metals it pumps into the air to 52 tons a year. And even that figure doesn't include the increased amounts of dioxin the plant would emit.
One of the deadliest known chemicals, dioxin is a particularly nasty substance that interrupts the body's endocrine system and weakens the immune system. It is created when chlorine is burned. Under the permit it seeks, TXI would be allowed to increase the amount of chlorine it burns from 883 tons a year to a staggering 3,404 tons.
Both the company and state officials maintain that the plant is perfectly safe, but citizens living downwind have long complained that the "rotten egg" smell and "chemical odors" coming from TXI make breathing difficult, set off asthma attacks, and create a burning sensation in the eyes, nose, throat, and lungs.
TXI has been cited for violating state air-pollution laws four times since 1991, including complaints that it exceeded its permitted sulfur dioxide emissions and was creating an odor nuisance.
In 1995, the TNRCC ruled that TXI's emissions "tended to be injurious to or to adversely affect human health or welfare, animal life, vegetation or property" on six dates from 1991 through 1993. In response, TXI paid a $38,250 fine and agreed to complete an "odor nuisance study." To date, TXI has not submitted that study to the state, state officials say.
The gases and metals escaping from its smokestacks are only one of the ways TXI's Midlothian plant pollutes. There is also ash left over after hazardous waste is burned, which TXI dumps in its own back yard.
When commercial incinerators--that is, companies burning waste solely to get rid of it--burn waste, the leftover ash is considered toxic enough that it must be buried in permitted landfills designed to last 700 years, double-lined, and sealed to prevent metals and poisons from leaking into ground water.
But when hazardous waste is burned as fuel at a plant like TXI, the resulting "cement-kiln dust" doesn't have to go to a permitted landfill.
"Commercial incinerators are regulated up to their necks, and cement kilns are barely regulated up to their ankles," complains Charlie Schnabel, a lobbyist for Rollins Environmental Services, owner of the nation's largest commercial incinerator.
TXI dumps its cement-kiln dust into a quarry on its 1,587-acre plant site. The quarry's rock walls contain fissures, and it lies adjacent to Cottonwood Creek--a tributary to Joe Pool Lake, which is a hot spot for swimmers and a source of public drinking water. Although TXI claims that metals and toxins are not seeping out of its quarry, state and federal inspectors have found otherwise.
In 1992, the Texas Water Commission cited TXI for a series of violations, including bad record-keeping and failing to tell the state what types of waste it was generating. Of greater concern, however, was the discovery of a "reddish-brown" liquid seeping from TXI's landfill. It is not known if the liquid reached Cottonwood Creek.
A year later, the TWC discovered that ground water samples taken at the plant routinely contained unusually high pH levels, as well as elevated levels of antimony, iron, mercury, selenium, and methylene chloride, among other contaminants.
"These laboratory results demonstrate that an adverse impact on the ground water has occurred," a TWC inspector wrote in an April 23, 1993, letter to TXI.
In both cases, TWC officials threatened TXI with $10,000-a-day fines, but backed down after TXI officials promised to fix the problems.
In 1992, the Environmental Protection Agency determined that TXI had failed to properly sample its cement-kiln dust and that, as a result, the company could not prove that its ash was not hazardous. The EPA cited the company for operating a hazardous waste landfill without a permit. The agency initially proposed fining TXI $304,314, but settled for $26,000 and promises that TXI would do better in the future, according to EPA spokeswoman Cheryl Hochstetler. But the company's promises did not resolve safety concerns about its disposal of cement-kiln dust.
In 1994, the EPA identified TXI as a "case of potential damage to ground or surface waters" because it believed toxic metals and cement-kiln dust from TXI's landfill could leak into nearby tributaries and ground water.
Today, the EPA is still deciding whether to classify cement-kiln dust as a hazardous waste--a question it has been unable to resolve for about eight years, according to Steve Gilrein, an associate director in the permit division of the EPA's Region 6 office in Dallas.
"There has just been a historical belief that it [cement dust] just didn't present the same hazard as commercial incinerator waste," Gilrein says. "There generally is agreement that there has to be an appropriate waste disposal system, however."
Dressed in baggy jean shorts and a 1994 Lollapalooza T-shirt, Jim Schermbeck cracks open one of the large black binders that consume every available inch of the cramped office of Downwinders at Risk. From the binder, he extracts a single piece of paper.
The fading July 17, 1987, interoffice memo from the Texas Air Control Board contains the state's permission for TXI to burn 100 percent "waste-derived fuel" at 6,696 gallons per hour. (The Texas Air Control Board and Texas Water Commission have since been merged into the Texas Natural Resource Conservation Commission.)
"The company has submitted information which shows that the emissions from the cement kilns will not increase by a significant amount and public notification is not required," the memo states.
With the state's permission--unknown to residents of Midlothian, DeSoto, Cedar Hill, Duncanville, Dallas, and other nearby communities--TXI began burning hazardous waste. It took two more years before residents learned that TXI's smokestacks were spewing a whole new set of pollutants over their rooftops.
Residents finally learned the truth in 1989, almost by accident. TXI went to the state for permission to begin storing hazardous waste at the plant. Neighbors didn't even know TXI was burning waste, much less that it wanted to start storing thousands of gallons of the stuff.
At the time, the state wasn't required to hold a public hearing on the storage permit unless someone asked for one. Although TWC officials appeared ready to grant the permit in the fall of 1989, a sudden influx of citizen complaints prompted them to delay the decision.
"One of the most disturbing aspects of this whole thing is that...we just happened to find out about it by accident," Midlothian resident Linda Lott wrote in a letter to state officials.
Lott was one of dozens of area residents who wrote the state opposing the storage permit, outraged that the original decision to let TXI burn hazardous waste was made behind closed doors.
Plant neighbors began to ask questions, exchange information, and attend public meetings. A grassroots movement was born. During the past eight years, the movement has operated under various names and configurations. But its numbers peaked several years ago, and since then it has been withering.
Today, Downwinders at Risk represents the dwindling leftovers of a once-hardy movement. For all practical purposes, Downwinders is the only organization battling TXI.
This bantam group of mothers, housewives, and retirees are penny-ante bettors trying to beat a corporate giant in a game with millions of dollars on the line. Their chances of victory are slim.
"These guys entered the process really believing that the system was there to work for them. When they see that it doesn't work like the civic books say it does, they become very angry," Schermbeck says. "It causes a real deep cynicism in people when this happens."
As the Downwinders' only paid staff member, Schermbeck works--and lives--in a tiny, red house in Cedar Hill, its cracked front window held together with masking tape. Each month, members of the group dig into their pockets to cover Schermbeck's $450 rent, plus bills. Although Schermbeck gets reimbursed for his expenses, his paycheck usually comes in the form of groceries.
Downwinders hired Schermbeck in the fall of 1994, when it first appeared that TNRCC was preparing to hold public hearings on TXI's permit application. Schermbeck was enlisted to track the technical aspects of the permit and to guide Downwinders through the process. The job was expected to last two years.
"I never thought that when this May was up, we'd be just beginning the permit process," Schermbeck says. "It's awfully hard to live this way, but I don't like to walk away from a fight."
A graduate of Austin College whose bachelor's degree is a combination of political science, philosophy, and religion, Schermbeck spends his time researching TXI's operations and plotting Downwinders' strategy.
For the past 18 months, the group has tried to build a coalition of cities to intervene in the permit hearing and oppose TXI. It has also recruited area doctors and lobbied state lawmakers in hopes of obtaining legislation that would require TXI to meet tougher environmental standards.
"This is as much a political process as it is a legal one or a technical one," Schermbeck says. "As long as you keep the spotlight on Governor Bush and the TNRCC, you're putting them in the hot seat, and that's where they need to be."
The Downwinders have won several skirmishes over the years, but as they prepare to enter the ninth inning, Schermbeck says they need bigger hitters.
"It's that hump of money and politics at the higher echelons of state government that we can't get past," Schermbeck says. "It's very, very frustrating to get 90 yards downfield and come up against this brick wall. We just don't have the money to compete."
TXI certainly has money. In 1996, the Dallas-based company rang up $360 million in sales and earned a record-breaking $90 million in profits, eclipsing the previous year's record profits of $69 million.
Credit a vigorous Texas economy, but TXI should also thank the U.S. Environmental Protection Agency, which handed cement companies a whole new way to make money back in 1985.
That year, the EPA changed the rules on hazardous waste-burning, creating a nifty little loophole for cement companies like TXI.
Commercial incinerators, the companies burning hazardous waste solely to get rid of it, are required to obtain special permits and meet specific health and safety standards. But the EPA decided to let companies like TXI start burning waste as fuel without meeting the same standards.
Thousands of manufacturers across the country had hazardous waste to get rid of. Owners of voracious cement kilns saw a new supply of fuel. Virtually overnight, the EPA created a brand-new industry which it was not prepared to regulate.
Now, the American Lung Association estimates that 60 percent of the hazardous waste generated in this country is burned not in the special incinerators built for that purpose, but in cement kilns. In 1995, cement companies burned 1.2 million tons of hazardous waste, compared to 845,000 tons burned by commercial incinerators, according to EI Digest.
The incentive to burn hazardous waste is obvious: Not only does TXI save a small fortune on coal and natural gas, it gets paid to take hazardous waste off the hands of manufacturers.
Nowadays, TXI advertises the practice as a "recycling" program, good for the environment. But the company's decision to burn waste was driven by the color of money, and the need to undercut competitors.
In 1986, Gifford Hill Cement Company (now North Texas Cement Company) began burning hazardous waste a few miles north of TXI. The company was forced to stop the practice in 1991 after being cited for violating its permit.
At the time, at least one TXI executive was troubled by the prospect of hazardous waste being burned in Midlothian. Then-TXI plant manager Rudy Hall penned a letter to state officials on March 30, 1986, questioning the wisdom of allowing cement kilns to use hazardous waste as fuel.
In his three-page letter, Hall formally requested that state officials hold a public hearing to examine the risks. Ironically, the TXI manager's 1986 argument is the same one TXI's opponents are making today.
"As a citizen of Midlothian, I am concerned about the air quality in this area and also the effect on the water supply from burning the waste-derived fuel, especially the lead and metals concentrations," Hall wrote in the letter, in which he did not identify himself as a TXI employee.
But the next year, TXI got its own permit amendment and started burning the waste itself. Hall had argued that a public hearing on such waste-burning was essential. But when TXI started burning waste itself, the need for a public vetting became less obvious to the company. TXI aggressively--and successfully--argued that it should not be required to tell the public it was going to burn hazardous waste, according to a series of memos that circulated at the now-defunct Texas Air Control Board (TACB).
Since 1987, TXI has steadily increased the amount of hazardous waste it burns each year, from 26,924 tons in 1989 to an estimated 100,000 tons now, according to the TNRCC.
In 1991, the EPA did try, at least partially, to close the loophole it had created and impose stricter standards on industrial furnaces, including cement kilns. The new rules required companies like TXI to apply for permanent permits to continue burning hazardous waste. It is that permit TXI now seeks.
State and federal officials contend that the new standards are as tough on cement kilns as the old standards have always been on commercial incinerators. Environmentalists don't buy that for a minute, and say cement companies like TXI will still be allowed to belch excessive pollution into the air.
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.
The law judges--Tommy Broyles and Carol Wood--will hear evidence, listen to witnesses, and make a final recommendation to the three TNRCC commissioners. Testimony, beginning December 1, is expected to last at least a month.
Neal Carman, who will participate in the hearing, believes there's a good chance the law judges will recommend a permit that is stricter than the one TXI is seeking. But he also believes the TNRCC commissioners, who have the final say, will give TXI everything it wants.
"You cannot separate politics from regulation at TNRCC. All TXI has to do is pick up the phone and call the governor's office," says Carman, who calls the agency's track record on polluters appalling.
"They turn communities into sacrifice zones to save polluters big bucks," he says. "It happens all the time all over the state. It's a broken record."
Opposition to TXI first flourished in 1989, after the company applied for a state permit to store hazardous waste at its plant. Letters from nearby citizens prompted a series of public meetings from 1990 through 1993, during which hundreds of residents routinely turned out to voice their concerns about TXI's hazardous waste program. The movement was in its heyday.
"You wouldn't know it these days," Jim Schermbeck says. "But back at those initial meetings, 500 to 600 people would show up."
Sue Pope doesn't remember the exact day she learned of TXI's toxic burning, but she remembers how. Pope found four balloons trapped in the bushes on her 27-acre ranch. The balloons had been released by CAUSE--the group that preceded Downwinders--to alert residents to the wind patterns of TXI's emissions.
At the time, Pope was preoccupied with the business of breeding horses on her ranch, which lies just outside the Midlothian city limits on land her family has owned since the 1930s. In the early 1990s, Pope's prizewinning Arabians were starting to have trouble reproducing. And Pope and her husband were increasingly having problems breathing.
Pope called the phone number attached to the balloons that landed in her yard, and began a seven-year journey that would consume much of her time and energy. Since then, Pope's son has gone off to college, and she has converted his bedroom into an office filled with medical reports, veterinary reports, and thousands of documents collected from various state agencies.
Like her neighbors, Pope didn't know the first thing about how a state environmental agency works. She didn't even know what Greenpeace was.
"I was so naive," Pope says. "I thought if I went down to the state and told them I was having health problems relating to this, they'd do something about it. I really did."
In the years since then, Pope says she has been ignored, insulted, and humiliated by state officials. Her claims might sound like sour grapes from a beaten activist, but state records bear her out.
In November 1991, Pope was the subject of an interoffice Texas Air Control Board memo, in which one state inspector sarcastically concluded that Pope was a "rational human being" even though she believed there was a "spy" in the agency who was giving TXI advance warning of surprise inspections. (Other documents included in the state's files show that the state did warn TXI of upcoming on-site investigations.)
The inspector then proceeded to attack Pope for her lack of scientific knowledge. "She didn't know what an organic compound was," the inspector sniped.
Recollection of those types of comments cause tears to well in Pope's eyes. "We're going to them on bended knees, and they don't care," she says. "The average person doesn't know how to begin to fight. And it costs money and time. There's no profit in this for us--except survival."
Planting her elbows on her kitchen table, Pope buries her head in her hands and sighs. "I'm tired," she says.
Pope, like Schermbeck and the few others who have remained true to the cause, knows that TXI is winning. The company has won in the legislature and in court, and most likely will win at the TNRCC. Whatever momentum the Downwinders had three years ago has been lost.
That is exactly what TXI hoped for when it brought in a hired gun named Harold Green to wage war on the plant's opponents.
The smiling lass kneels in a sea of bluebonnets, wearing an airy summer gown, its sleeves neatly pleated and delicately puffed. A cluster of trees stands behind her, leafy branches extending toward a cloudless blue sky.
"Healthy Children. Colorful Flowers. Green Trees. Bright Blue Sky. All the Elements of a Beautiful Picture and a Beautiful Earth," states the full-page advertisement, which recently ran in the Arlington Morning News. Underneath the idyllic picture was the motto "TXI: Building a Better Environment."
This is the work of Harold Green.
TXI hired Green as its director of communications in September of 1995 and assigned him to lead the company through the rocky public relations journey certain to accompany its quest for a new hazardous waste permit. At the time, Downwinders was still strong, and Green acknowledges that he took control of a public relations disaster.
"Up front we were in a reactive mode, because we did come in behind," Green says. "I didn't really have time to sit down and plan, as much as I had to sit down and react and get out as much information as we could."
But it was nothing that a company with $90 million in annual profits couldn't fix. Since Green's arrival, TXI has bankrolled a formidable team of lawyers, lobbyists, and public relations aces, and has largely subdued the plant's opposition.
A few key politicians have also been enlisted, including Maurice Osborn, one of TXI's newest employees, who also happens to be the mayor of Midlothian.
On a Thursday afternoon in May, Green relaxes inside TXI's corporate headquarters, a yellow, seven-story glass building on West Mockingbird Lane in North Dallas. Green has traded the pinstriped armor he usually dons out in the community for a plaid shirt and khakis. Every day, Green says, is casual day at Texas Industries.
"If I had known how bad it was when I walked into it, I would have done a better job negotiating my job," Green says with a chuckle. "What's been interesting from my standpoint is to watch, in the last six to eight months, the opposition fairly well melt away."
On that point, Green is correct. The angry mobs that used to show up at public meetings have dwindled, leaving Green to contend with the few remaining members of Downwinders. While Green appears to have the situation under control, his casual posture inside the sixth-floor conference room is misleading.
As the company prepares for the permit hearings, Green is busier than ever. The public relations operation he launched more than a year ago isn't getting smaller, it's simply getting better.
"The thing has changed. At this time, there isn't much need to be in an attack mode or to be putting out the same type of ads, where we were having to fight off what was being said," Green says.
Soon after he arrived, Green began blanketing Midlothian and its surrounding communities with advertisements in local newspapers like the Midlothian Mirror, Duncanville Today, and the Cedar Hill Sentinel.
The early ads were designed to discredit the Downwinders, challenging their claims about the hazards of TXI. Those first ads were type-heavy and gave readers a lot of statistics to digest.
Over the months, readers were told that TXI had reduced its emissions by 68 percent. They were told that "waste-derived fuel" burns more cleanly than coal. They were told that TXI prevents illegal dumping by giving companies a safe, affordable place to get rid of their waste.
When the Downwinders tried to enlist Cedar Hill's elected officials to join their opposition, Green fired back with a series of "op-ed" pieces that he purchased in local papers. The ads contained a cut-out ballot with the carefully crafted statement: "Although I want our city to carefully monitor TXI's permit, spending thousands of tax dollars for legal intervention is a waste of money."
Readers were encouraged to send the vote in to TXI, along with their names, addresses, and telephone numbers. Green can't recall how many responses were mailed in, but he remembers the inspiration behind the series with great fondness.
As the months dragged on, Green's campaign took root, and public opinion began to turn in the company's favor. Green was able to shed the defensive skin, and begin portraying TXI as a good friend and neighbor in the community.
"This is our home base, and it's home to TXI employees who live near you, go to church with you and are involved in your community," one ad stated. "Our city involvement includes everything from supporting local groups to hosting tours and fossil digging for school children at our plant."
But the turning point in the battle over public opinion came on November 2, 1995, when the TNRCC released a report on the health risks of TXI's emissions. That day, 500 people gathered at Midlothian Middle School, where state officials calmly announced their conclusion that TXI did not present a health threat to the community.
"All of this...will give this community the level of comfort and closure that we know you want," TNRCC spokesman Ed Clark told the crowd, according to an article in The Dallas Morning News. The TNRCC's findings, which were later bolstered by the EPA, left many residents with no choice but to go home. With the new scientific evidence, presented by the TNRCC and the EPA no less, why should anyone continue to believe a bunch of activists?
Unswayed by the government's conclusions, the Downwinders and the American Lung Association hired University of Michigan Professor Stuart Batterman to critique the state's findings. Batterman was highly critical of the report, but it wasn't enough to reverse public opinion.
By announcing its findings before the permit hearing process began, the state inadvertently found itself in the awkward position of defending TXI's operations. For Green, the state's announcement was a public relations gold mine.
Soon, TXI's newspaper advertisements began to quote TNRCC officials, citing the state's report as evidence that TXI is an environmentally friendly operation.
"The impact [of the TXI ad campaign] would have been negligible if all the reports hadn't come out in our favor," Green says. "Our opposition kept saying, 'Wait till the TNRCC comes out with its report.' The TNRCC report comes out, and what happens is the TNRCC got attacked."
But Green had to battle on another front as well. In 1995 and 1996, a coalition of commercial hazardous waste incinerators made a two-year, $260,000 donation to the American Lung Association, which officially opposes cement kilns that burn hazardous waste. Green hollered foul, but former Texas ALA spokesman Wade Thomason issued a two-page letter saying that only $46,000 of that money made it to Texas, representing less than 1 percent of the chapter's $3 million annual budget.
"Who is really the underdog in this case?" Thomason wrote. "Who can you really trust, one of the biggest toxic waste burning companies in the United States and the major source of particulate matter pollution in North Texas, or a nonprofit health agency dedicated to clean air, healthy lungs, and the prevention of lung disease?"
As the controversy unfolded in newspapers around the Dallas-Fort Worth area, the task of deciding who to trust became increasingly difficult.
Green won't say how much he's spent on advertising, but Sentinel publisher Lou Antonelli says TXI has spent about $9,000 in his newspaper alone during the last 18 months. In addition to its weekly sponsorship of the school lunch menu, TXI usually buys a full-page ad every month to congratulate students for their athletic and academic accomplishments.
"Harold's work humanized the company," Antonelli says. "Before, they were a vast, impersonal Fortune 500 company that didn't care enough to send a representative to meetings."
Green has spent countless hours grooming the corporate image during various public meetings. But, according to some reports, Green's community rounds don't always leave people feeling warm and fuzzy.
In November 1995, TXI went to great lengths to impress members of the Texas Parent Teacher Association during their annual convention in Austin. Before the state PTA was a recommendation that the group take a stand opposing the burning of hazardous waste in cement kilns.
TXI rented a booth at the convention and decorated it with characters from Sesame Street, including Big Bird. Ralph Rogers, TXI's chairman of the board and a former PBS chairman, was on hand to promote public broadcasting as an educational tool.
"Several people described Green as an obnoxious presence on the convention floor; he angrily confronted Phillips in the exhibit hall and, she said, tried to disrupt her workshop on environmental organizing," Texas Observer reporter Michael King wrote in his report on the convention. The PTA ultimately tabled the cement-kiln resolution.
Green says it was Phillips who got upset when a vote on her resolution was delayed, although he concedes he got mad because Phillips was inaccurately claiming that TXI pumps out big "black clouds" of smoke.
"I said, 'Give a visual image that's based on facts or reality,'" says Green. What most people see coming from TXI's stacks, he says, is white steam.
Like Harold Green, Midlothian Mayor Maurice Osborn says he dislikes environmentalists who distort facts and tell lies. The Downwinders, he says, are scaring people away from Midlothian with unfounded horror stories.
"In my dealings with these people, in 10 years, I do not trust 'em at all--as far as I can throw 'em," Osborn says. "Put the truth out on the table. And if the truth is a little gray, let's look at it. Let's investigate it, but don't do it at someone else's expense. Don't do it at the community's expense."
Earlier this year, Osborn showed up at the state capitol to express his support for a bill that would have weakened the TNRCC's ability to investigate health and environmental complaints filed against industries like TXI.
Osborn told members of the House Committee on Environmental Regulation that a "small interest group" was filing too many frivolous complaints with the TNRCC, and that too much time and money were being wasted on investigations.
"Besides earning my living as an executive in the business community, I am the mayor of Midlothian," said Osborn, who has been mayor for nine years. "So I think that I pretty well represent the views of most of the people in the community and the approach that our city wants to take."
When Osborn introduced himself, however, he failed to mention that his job as an "executive in the business community" is as vice president of Rail Port Development for Brookhollow Corporation, a wholly owned TXI subsidiary. Osborn accepted the position last summer.
During an interview inside Midlothian City Hall, Osborn says he doesn't think his trip to the capitol was a conflict of interest, because it was "beyond the action of the city hall." Besides, he says, he has a right to an opinion.
And Osborn's opinion is that the city has cooperated with state and federal officials to make sure that the health of its citizens is protected.
"We're environmentally conscious here," Osborn says, winking his right eye. "Trust me."
Anyone wondering just how little clout the Downwinders have left needs only to examine how assiduous--and successful--the company has been recently in courting elected officials.
For instance, when newly elected Mayor Rob Franke brought the May 13 meeting of the Cedar Hill city council to order, the deck was already stacked against Downwinders.
Two years earlier, the council had agreed it would become actively involved in the TXI permit hearing because Cedar Hill's citizens believed the company posed an unknown threat to their environment. The decision to take a stand followed numerous council meetings, during which hundreds of area residents led by the Downwinders turned out to debate the issue.
But at its May 13 meeting, the council was asked to change its mind and stay out of the permit hearing. If the city would back off, TXI promised to pay for some independent waste and soil samples after it received the permit.
The Downwinders were nowhere in sight that night, but TXI spokesman Harold Green was. Seated in the last row of seats, Green calmly plucked lint off his pinstriped trousers as the council plowed through its agenda.
When the council reached "New Business," only one council member, Makia Epie, expressed reservations about the TXI resolution. But his lone vote didn't change matters. As it turned out, the deal had already been cut.
Even as the mayor and council members raised their hands to vote six to one in favor of abandoning the challenge to TXI's permit, Green sprang from his chair and began passing out copies of a press release that had already been printed lauding the council for its action.
With the vote, the Downwinders lost another member of the coalition of cities it had hoped to build in opposition to the permit. For Green, the victory was just another good day at the office. And Green has had a lot of good days at the office lately.
Just two months earlier, more than 30 Downwinders and other citizens trekked to Austin for a meeting of the House Committee on Environmental Regulation. The committee was considering a bill that would have required TXI to meet the tougher standards already applied to commercial incinerators.
But the citizens, who took vacation days and arranged car pools to attend the hearing, were easily drubbed, beaten to the punch by a team of 14 lobbyists whom TXI paid more than $290,000 this year to carry its legislative agenda, according to the Texas Ethics Commission.
The lobbyists' work was done long before Rep. Warren Chisum threw down his gavel and called the committee hearing to order.
Three TXI employees were on hand, ready to extol the safety of the Midlothian plant. But before the company's experts even testified, the state did most of the work.
Officials from the TNRCC--supposedly neutral in the hearing process--effectively argued TXI's position, saying that the plant poses no health threat; that cement-kiln regulations are already strict enough; and that if TXI has to raise its prices to pay for regulation, the state will be encouraging illegal dumping.
When citizens rose to speak in favor of the bill, they were grilled with technical questions they couldn't possibly answer.
Duncanville council member Judy Richards begged the committee to consider the fears of citizens. In response, she was asked if she had a better idea for getting rid of waste, a question that prompted the committee to break out in giggles. The bill, sponsored by Rep. Jesse Jones of Dallas, died in committee.
Another victory for Team TXI.
Last month, the company's lawyers scored a win in Dallas County District Court when Midlothian residents Rick and Wendy Early withdrew a class-action suit they had filed against TXI in 1995.
The Earlys claimed that TXI's emissions were, in part, damaging their health and property. But after almost two years of litigation, they found that proving those claims was an insurmountable task.
The Earlys produced some 10,000 documents in response to more than 100 "discovery" requests by TXI lawyers, who conversely dragged their feet in answering questions about the plant's operations, according to a motion the family's lawyer filed last year.
"This case has now been on file for almost a year, and [TXI's] tactics have precluded any discovery from being taken whatsoever! Plaintiffs respectfully request this Court deny the pending motions and let this case actually get under way," attorney Steven Baron complained in the brief.
Ultimately, the Earlys could not sustain the effort, and the lawsuit was dismissed. Baron initially agreed to discuss the lawsuit with the Observer, but canceled the interview shortly before he withdrew the case. He did not return subsequent phone calls.
Defeated in Austin, in local city council chambers, and in the courts, the Downwinders have only one fight left--the permit now under consideration by the TNRCC.
On a Thursday evening in May, Mary Risinger's doorbell began ringing just after 7:30 p.m. Sue Pope was the first to arrive, her arms filled with a heap of statistics, notepads, and copies of recent correspondence with the TNRCC.
Within a half-hour, 20 people filled Risinger's tiny living room, which is otherwise jammed with miniature statues of birds, flowers, and wildlife bric-a-brac. Jean Trees and Linda Lott were there, along with Jeannie Rivers, whose husband couldn't come because he had to look after the couple's six-year-old son.
"Gosh, it's like a reunion in here," said Jim Schermbeck, who arrived late after spending an unsuccessful day lobbying state lawmakers in Austin.
The first phase of the marathon permit hearing was just a few days away. The two administrative law judges would hold a preliminary hearing to decide who could become official "parties" in the process.
The Downwinders had to set their strategy. Volunteers were needed for another balloon release. Buses had to be rented to drive demonstrators to a pre-hearing rally.
Rita Beving, president of the Dallas chapter of the Sierra Club, began the meeting with good news: The national Sierra Club was willing to hire an attorney to represent the group.
But the national office was concerned about the costs, so everyone would have to pitch in at bake sales and garage sales. The group needed to raise about $200,000, and fast. So far, it had only $14,000.
"None of us have enough money to fight this, so we'll do it with people power," Pope said, pumping her fist like a cheerleader at a pep rally.
Schermbeck tells his supporters they need to get as many people as possible to show up at the May 20 public hearing. The media will be there. It will at least be a chance for people to talk about why they believe TXI is making them sick.
"This is your time to say what's on your mind," he says. "This is the one chance we have left to affect this permit."
The day before the hearing, Downwinders gather in front of TXI's plant to release 1,500 balloons, a visual demonstration of how TXI's emissions drift northward over the Metroplex. But the gesture also serves as a reminder of better days that have long since passed. The crowd is small, and several mothers have to take their children home early because the emissions from TXI are making them cough. "We got gassed pretty good," says Pope.
The next day, waiting outside Midlothian Middle School for the hearing to begin, Green is still laughing about the balloon stunt. "Only seven people showed up," Green says. "If this is as big an issue as they say it is, then they should have had more people."
Standing in the mist, Green is further heartened by the Downwinders' seeming inability to stage even a simple protest.
At long last, the moment for which plant opponents have spent years waiting--even begging--has finally arrived, and the Downwinders are nowhere to be seen.
In a press release distributed days earlier, the Sierra Club's Beving told reporters that a busload of activists would descend upon the school, fired up and ready to trounce TXI during the hearing.
But on hearing day, Beving nervously paces inside the school's auditorium, wondering what happened to the bus. The assembled journalists are growing bored, sitting in the school's entryway clasping bright orange TXI public relations folders handed out by Green.
By the time the rented tour bus finally pulls into the parking lot and wheezes to a stop, the protest is running a half-hour late.
"Hey, hey. Ho, ho. TXI has got to go," they chant, barely audible over the idling of the waiting bus and grumbling cameramen.
As each of the 30-odd protesters steps off the bus, wearing gas masks and holding signs, the smile on Green's face grows wider.
The television cameras approach Green for TXI's official comment on the protest. Green jerks his pinstriped suit coat into place and casually clasps his hands behind his back.
"I think it's a fact that we're going to get a permit," he says.
Next week, Part Two of this special report will examine the effect TXI's Midlothian plant is having on the health and lives of those living near it. Readers with comments can e-mail staff writer Rose Farley at email@example.com