Bottom of the ninth

Critics of the Texas Industries cement plant in Midlothian have obtained company documents that appear to bolster their contention that TXI officials distorted information about health hazards posed by the plant's emissions.

The information comes as TXI opponents prepare their final challenge of TXI's attempt to win a 10-year state permit that would allow the plant to continue burning hazardous waste for fuel.

An administrative hearing on the permit application began Monday at the Holiday Inn in Duncanville. For the first time ever in the United States, the hearing will give residents a chance to contest a cement plant's request to burn hazardous waste, a practice TXI began secretly in 1987 thanks to a loophole in federal law.

As part of the hearing, TXI officials must answer questions about the plant's operations. Residents also will have an opportunity to testify about a variety of health problems they believe are caused by the plant's emissions.

Even before the hearings began, plant opponents obtained TXI documents indicating that company officials withheld information as part of a public relations effort to counter critics.

TXI, located 30 miles southwest of Dallas, is the state's largest cement manufacturer and the only cement plant in Texas that uses hazardous waste as fuel. The plant is also the largest industrial air polluter in North Texas, its towering, antiquated stacks pumping out tens of thousands of pounds of metals and other debris each year.

In its permit request, TXI is asking the Texas Natural Resource Conservation Commission for permission to more than double the amount of waste it burns. If the permit is granted, TXI would become the nation's largest incinerator of hazardous waste.

The Dallas Observer detailed the history of TXI's hazardous waste program last year in a two-part series titled "Ill wind blowing" and "Something in the air." The series illustrated how state officials are poised to grant the permit despite questions about the hazards TXI's hazardous waste program poses to human health and the environment.

To TXI, the advantage of burning hazardous waste is obvious: Instead of paying for coal or natural gas to fire its kilns, TXI charges other companies to burn their hazardous waste. At the same time, TXI is not required to install the same safety mechanisms as commercial hazardous waste incinerators. As a result, the emissions coming from TXI's smokestacks are more sinister than those of a typical cement plant, laced with pollutants like arsenic, cadmium, mercury, and lead released in what critics describe as a "toxic soup."

Those who live downwind of TXI's emissions have long complained about sulfurous odors and believe the plant's pollution is to blame for various 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.

TXI officials maintain that their waste program is a recycling effort that poses no threat to human health. TXI has hired lobbyists, public relations experts, and politicians, including Midlothian Mayor Maurice Osborn, to push its case.

During the first round of testimony, plant opponents say they plan to use TXI's own documents to show how that public relations effort intentionally excluded information about serious health risks the plant's emissions pose. The company was forced to disclose previously unavailable internal documents during a seven-month discovery process that began last summer.

Among the information plant opponents found was a series of internal memos written in 1991, when TXI hired a consultant to analyze three 3-hour air samples taken downwind of the plant. TXI wanted to use the information as evidence of the plant's safety in advertisements it was planning to publish in local newspapers, according to a memo written by Randy Jones, who is in charge of overseeing TXI's hazardous waste program.

"I want to publish this information in the local newspapers next week if I can come up with some way to make the data meaningful," Jones stated in the July 24, 1991, memo, which was addressed to Kathryn Kelly, a consultant for Environmental Toxicology International Inc.

Jones was so confident that the results would reveal that TXI's emissions posed no threat to human health that he even joked about how to spin the information to the public.

"Could you tell me how many steaks a person would have to eat to equal this health risk," Jones wrote. "Just kidding!"

Kelly, however, couldn't find much to joke about two days later when the results of the tests came in.

The good news, Kelly wrote, was that the non-cancer-causing compounds the tests detected were all within limits that the Environmental Protection Agency considers safe. The bad news, she added, was that she found carcinogenic compounds--namely arsenic, beryllium, cadmium, and chromium--at levels well beyond what the EPA considers safe and what it allows under federal law.

Under rules that govern the operation of boilers and industrial furnaces, the EPA has determined that carcinogens cannot present a risk of cancer that is greater than 1 in 100,000. But, Kelly wrote, she found carcinogens present at levels where the risk of cancer was 1 in 5,000.

"I would suggest you not [print] that risk data, at least not for carcinogens," Kelly wrote in a memo dated July 26, 1991.

But the bad news didn't stop Kelly from helping Jones devise a strategy to use the information to the company's advantage in its public relations material. In her letter, Kelly recommended that the company compare the concentrations with "effects screening levels" or ESLs. ESLs are another way the state measures the health risks caused by the presence of toxins in the air, but critics say that ESLs are arbitrary and unscientific.

Kelly admitted as much in her memo, despite TXI's and the state's history of defending ESLs as the best measure of the plant's safety.

"The ESL could be challenged, somewhat correctly, as an inadequately scientific basis of comparison (it is simply an occupational standard divided by an arbitrary uncertainty factor)," Kelly wrote. "But heck, I didn't make up the rules, and they are published state guidelines, so I'd say let's go with them."

Two weeks later, a TXI advertisement appeared in the Midlothian Mirror. Just as Kelly suggested, the advertisement compared the results of the tests with the ESL standard, which, TXI reminded its readers, is the standard approved by state officials.

The advertisement made no mention of the cancer risk that the company had found to be present in the air its target audience was breathing.

"We are very pleased with the results from the tests that have already been run," the ad stated. "They confirm what we have been saying all along: that our plant is a viable part of the life of the Midlothian community and not a detriment to the environment or citizens' health."

The advertisement is just one example of how TXI has used public relations to distort the truth about the safety of the plant's emissions, says Jim Schermbeck, who has organized opposition to TXI's hazardous waste program on behalf of the citizens group Downwinders at Risk.

"We expect to hold the TXI plant people accountable for their statements and positions in the past," Schermbeck says. "We [will] talk about their responsibility to tell their neighbors what is going on."

In an attempt to offset criticism of the ad, TXI requested that Kelly type up another memo about the test results in late January--more than two months after Schermbeck questioned Jones about it during a deposition he gave in November. Rather than release the memo itself, TXI spokesman David Margulies released a one-page statement that contains excerpt from Kelly's new memo.

The excerpts downplay the health risk outlined in 1991.
"I do not think a meaningful health risk statement can be made about these data for several reason [sic]," Kelly wrote. "The primary reason is that there are too few samples of too short duration to confidently extrapolate the numbers to long-term exposure."

The hearings will move to Austin next week and return to Duncanville on March 16. When testimony is completed, administrative law judges Tommy Broyles and Carol Wood will make a recommendation on TXI's permit to the three TNRCC commissioners, who will have the final say on the matter.

Commissioner Ralph Marquez, a former TXI lobbyist, has stated that he will not vote on the matter.

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