Austin Chronicle
Lee Nichols

Change is in the air – literally.

On Dec. 19, the Texas Natural Resource Conservation Commission voted to change the factors considered when a company seeks to modify or apply for an operating permit. And national changes are expected any day now, with the Bush administration reportedly considering altering a key provision of the federal Clean Air Act. Environmentalists aren’t happy with either development.

On the TNRCC front, enviros managed to score one victory while losing another. The commission voted to require that a company’s compliance record with environmental laws for the previous five years be considered when it submits a permit application. One of the factors to be considered is “notices of violation”: letters from the commission warning of infractions but carrying no penalty. The original proposal would have allowed the TNRCC to consider only notices issued after Feb. 1, 2002 — a move that would have effectively given historic polluters a “clean slate.”

After heavy lobbying, the green camp persuaded the commission to accept notices going back to September of 1999. But another provision passed that allows regulators to consider only the record of the particular company seeking the permit — not its parent company or otherwise affiliated companies. Critics say this could allow a company with a bad record to simply create a new front company with no prior record.

“We were able to eliminate what we called the clean slate provision, which would have wiped out all previous violations before February 2002. But they kept what we call ‘the corporate shell-game provision,’ which basically means that if they come up with a new legal entity, but it’s the same operation, that will not follow them around,” said Robin Schneider of Texas Campaign for the Environment.

“This is going to be almost no protection for people, because it’s so easy to set up other entities,” Schneider said. “When I did research on the grandfathered polluters and their campaign contributions, the Texas Secretary of State’s records were not very accurate in trying to track down these corporations, and my records were better than the state’s were. This is a very dangerous provision. As others have pointed out, they are changing their legal entities all the time to take advantage of changes in the tax laws. I think we are going to need more legislation on this in the next session.”

Mark Vickery, deputy director of TNRCC’s office of compliance and enforcement, defended what even he admitted was a loophole, saying the commission had to realistically consider the enforcement resources at its disposal. “Part of it is a manageability aspect,” Vickery said. “For instance, if a company has several hundred sister/daughter corporations that are service station kind of things, then it becomes a resource issue. If you were to do a compliance history for a particular company that had several hundred other facilities, you might have a compliance history that is somewhat overwhelming, and at some point in time, the meaningfulness of it would be lost.

“There is no question that there is some loophole here. I don’t think it’s as big as what people made it out to be, for one reason in particular: The compliance history for that particular site, will always be there. They could change their name repeatedly for that particular site and we would always have that compliance history.”

Vickery also noted the new improvements in the rules: Now, if a permit seeker applies for, say, a waste permit, the TNRCC will also look at its compliance history for water and air, whereas before it would have only considered its waste history. And he pointed out that companies’ histories outside of Texas will also be considered.

At the federal level, President Bush is widely expected to relax the 1970 Clean Air Act’s New Source Review rules, which require any power plant seeking to significantly upgrade or repair its facilities to install improved pollution controls. (This is similar to the state rules that have become a thorn in the side of Alcoa’s Rockdale facility; both state and federal agencies are reviewing Alcoa’s maintenance records from the 1980s to determine if the company violated regulations governing new sources of emissions, and the Neighbors for Neighbors activist group just filed a lawsuit alleging that Alcoa did so.) The power industry has charged that these controls are too expensive and the rules are enforced too harshly, and the Bush administration warns that the regulations prevent new power plants from being built.

Environmentalists say the pending changes are part of a broader effort by the Bush administration to push through its anti-green agenda while the news media and voters are preoccupied with the war against terrorism. The Clinton administration more aggressively pursued enforcement and helped state attorneys general to sue violators, they say, and now Bush is looking to reverse these efforts.

The day after the TNRCC meeting, Schneider joined the Sierra Club’s Neil Carman and Public Citizen’s Tom “Smitty” Smith on the steps of the Capitol to ridicule the rule rollback by singing faux Christmas carols (“Polluter Pardons Are Coming to Town”) and offering “presents” symbolizing Bush’s holiday “gifts” to polluters. “We have pretty strong indications that they’re going to totally gut the heart and lungs out of clean air laws and undercut the lawsuits and investigations,” Schneider said. “We’ll have another generation suffering from dirty air.”

The federal rollback may also help undo a clean-air victory that Texas greens won just after Bush left the Governor’s Mansion, Schneider said. In the last legislative session, the infamous “grandfather loophole,” which allowed pre-1970 facilities (including the very dirty Alcoa plant) to escape the most stringent of Texas’ air pollution laws, was finally eliminated. However, since Texas law forbids the state from having regulations more stringent than federal ones, the federal rollback could automatically reverse that progress.

“In Texas, it’s largely the refineries that appear to have been violating [New Source Review rules],” Schneider said. “Companies like ExxonMobil, Phillips Petroleum, and Citgo are getting off the hook. Coincidentally, they are all large Bush contributors. From our point of view, this is largely payback. They get the presents, we get a lump of coal. It’s poignant — six or seven months ago we celebrated closing the loophole in Texas, and now we’re looking at an even bigger one.”

Austin American-Statesman
Maeve Reston

Austin school officials have agreed to use a cleaner burning diesel fuel in their buses after receiving thousands of letters from Austin residents pushing for the switch.

Superintendent Pat Forgione said Tuesday that the nearly 400 diesel-burning buses in the district’s fleet would switch to the cleaner burning fuel in an effort to reduce smog in the Austin area.

He said the switch was “a great step toward achieving better air quality in Texas.

“We’ll all breathe a little easier,” Forgione said.

Members of the Texas Campaign for the Environment organized the letter-writing campaign in May and enlisted other groups — from the National Association for the Advancement of Colored People to Education Austin — to pressure the district.

“This is a great day for children who ride buses,” said Robin Schneider, director of the Texas Campaign for the Environment, pointing to health problems aggravated by air pollution. “Every little bit helps to bring down the smog levels.”

Schneider said the move was an important step in improving Austin’s air quality. The city is in danger of being declared a non-attainment area for failing to meet federal air quality standards. Among other things, that puts federal transportation dollars at risk.

Travis County and the City of Austin have switched all diesel-burning vehicles to the cleaner burning fuel. The Lower Colorado River Authority also has taken measures to reduce its vehicles’ emissions.

Officials at Capital Metro, who switched their 295 buses and trolleys to the cleaner burning fuel in the summer of 2000, have said the agency is getting 2.5 more miles per gallon, which has reduced fuel costs by 2.5 percent.

The school district spends about $1.2 million on fuel for all of its buses and other vehicles. The district’s fleet of 450 buses transports 17,000 students a day. About three-quarters of the fleet uses 600,000 gallons of diesel fuel. Austin officials hope the extra cost of the new fuel — about 3 cents per gallon — eventually will be negated by better fuel mileage and reduced maintenance costs.

Austin Chronicle
Michael King

Out in the East Texas county of Milam,
Alcoa’s smelter commanded the world.
With towering smokestacks and draglines a hummin’,
Lignite did burn and pollution did swirl.
Blacker than night spewed particulate matter
Wicked and evil and casting a spell.
While Alcoa’s profits got fatter and fatter,
Rockdale was blinded, and so, could not tell.
— from “Ode to Alcoa,” lyrics by Billie Woods

March 26 marked the 30th anniversary of the grandfathered pollution loophole, and environmentalists threw the old boy a birthday party (“with cake & inhalers”) on the steps of the Capitol. They sang “Happy Birthday” (“It’s the last one for you/Don’t ask for more”), and other pop songs nicely adapted for the occasion. (My personal favorite was “Ode to Alcoa,” sung to the tune of Marty Robbins’ “El Paso.”)

For 30 years, since the enactment of the Texas Clean Air Act of 1971, the state’s “grandfathered” industrial facilities (about 1,000 of the state’s 2,500 active plants) have been exempt from the standard permitting processes and pollution-reducing requirements of the Act. As a group, they annually disseminate roughly 900,000 tons of air pollution into Texas skies (and lungs), more than a third of all the industrial air pollution in the state. Several former legislators — including co-sponsors of the Clean Air Act — have recalled that when the grandfathered exemption was established (for plants already in operation or under construction), it was as a “grace period,” in response to the repeated assurances of industry and their legislative supporters that grandfathered plants would be short-lived, and the exemption would soon be unnecessary. “Those of us involved in trying to get the bill passed,” said former Rep. Bob Gammage, “were assured that the facilities being grandfathered had a useful life of five to eight years, and in some remote circumstances maybe as much as 15 years.” Former Houston Rep. Sissy Farenthold said, “Back in 1971, I could have expected that my hair would be white by now, but I certainly did not expect this loophole to still be in effect.”

The grandfathered loophole has instead become a state-subsidized competitive advantage for polluting corporations (because they do not have to install pollution-control technology required of newer plants), and one more way private interests reap the profits on community resources (e.g., coal, water, and air) while imposing the costs (e.g., cleanup, health care, and quality of life) on the public at large. Last session the Lege took a bite out of the grandfathered exemption by requiring utility companies — which desperately wanted deregulation — to begin permitting and cleaning up their grandfathered facilities (some 50 plants, mostly coal-fired generators, estimated to account for nearly a third of those 900,000 tons). But for the rest, the Bush administration rammed through a “voluntary” program written by industry, the entirely predictable results of which have been virtually nil — and which even if fully implemented, would largely “succeed” by continuing the same grandfathered emissions under a new name: “permitted” emissions. These polluters have had 30 years in which to “volunteer” to cut emissions — why on earth should they change their ways now, unless required to do so?

As former Rep. Jim Clark, a Clean Air Act co-sponsor, put it, “When we put in the grandfather loophole, we didn’t know any better. Now we have the information that shows how wrong we were to let all those plants be grandfathered. I will add my voice to the others calling for the grandfather loophole to be closed this session, 30 years after we created it.”

Don’t Hold Your Breath

It’s an eminently reasonable request. Two bills currently under consideration at the Lege (Zeb Zbranek’s HB 356 and David Bernsen’s SB 493) would eliminate the voluntary program by Sept. 1 of this year and require formerly grandfathered facilities to install the best available pollution controls. Predictably, the industry’s foot-draggers have responded with Pampa Republican Warren Chisum’s HB 3545, which would extend the voluntary program, not begin requiring permits until 2005, and set no deadline for the installation of modern pollution controls. Moreover, Chisum’s bill would calcify into Texas law the EPA’s distinctions between ozone “attainment” and “non-attainment” regions of the state — when in fact the entire eastern airshed is increasingly polluted, and more than half the state’s citizens now live in places where the air is unhealthy to breathe. Such boundaries would make sense only in a country where the wind never blows.

It’s too early to tell which approach will survive the process, but one mordant indicator is that the House bills are both under consideration before the Committee on Environmental Regulation — chaired by Chisum. Although Zbranek is also a committee member (as is Austin’s Dawnna Dukes), it’s not easy being green in front of this group.

When Robin Schneider of the Texas Campaign for the Environment testified, several committee members dismissed her quotation of former legislators as “hearsay,” and seemed concerned less about the actual effects of grandfathered pollution than that Schneider take care to speak respectfully of industry’s needs for “flexibility.” At nearly midnight, several hours into the hearing, Schneider responded with some impatience, “They’ve had 30 years of lots of flexibility. It’s time we put the health of Texans ahead of their flexibility.”

The Alcoa lignite-fired power generator and aluminum smelter in Rockdale, still belching after all these years, remains the state’s single greatest point-source of grandfathered pollution (in excess of 100,000 tons a year). An Alcoa spokesman solemnly informed the committee that, under an agreed order with the Texas Natural Resource Conservation Commission, the company has “projected” a reduction in grandfathered emissions of all of 5,800 tons of nitrogen oxide (NOx) — and that the company was hanging fire on further planned reductions pending the outcome of the session. When Zbranek asked quietly which of the bills under consideration was likely to result in more and faster emissions reductions at Alcoa, the spokesman artfully dodged the question.

Alert readers of The New York Times may have noticed that Paul O’Neill, erstwhile CEO of Alcoa Inc. and now U.S. Treasury Secretary, has finally agreed to sell his more than $100 million in Alcoa stock because of potential conflicts of interest. You may be curious to know Alcoa’s liberal estimate of the cost of installing efficient pollution controls at its Rockdale facility (thereby cutting NOx and sulphur dioxide emissions by half or more): $100 million.

Yet despite the Lege’s traditional reluctance to confront industry, Tom “Smitty” Smith of Public Citizen expressed guarded optimism on the grandfather bills. He says that with Gov. Bush gone and urban air pollution deadlines coming due under the federal Clean Air Act (requiring Texas to do something serious about pollution, especially in Houston and Dallas/Fort Worth), the political situation has altered. “If the committee delivers too weak a bill to the House,” Smitty said, “we can probably win a substantial number of [strengthening] votes on the floor.” Industry interests may be able to slow the process, he added, but the politicians know “we’ve got to be able to get our air clean. … We know what a failure the voluntary program has been, and it will be very hard to vote for a program which has failed so abysmally.”

Sipping the Incentives

Public Citizen is also supporting SB 5, Sen. Buster Brown’s attempt to “incentivize” the clean air process by creating mechanisms to encourage (i.e., pay) industry to reduce emissions. The bill would create financial incentives for retrofitting equipment (especially pollution-heavy diesel engines), for the purchase of cleaner cars and trucks, and for better energy standards for homes and appliances. The bill is a direct response to the in-progress State Implementation Plans (SIPs) for Houston, Dallas/Fort Worth, and El Paso, as well as the seemingly inevitable SIPs down the line for Austin, Longview/Tyler, Corpus Christi, etc. Announcing the bill, Brown insisted it was not a “replacement” for the SIPs, but “a way of implementing them.” Industry had panicked when the TNRCC’s proposed ozone-reducing SIP for Houston (which still doesn’t meet federal standards) included such elements as no use of diesel equipment before noon and mandatory staggered no-driving days (along the lines of summertime water rationing). The Houston SIP is under legal attack from both industry and environmental groups, and SB 5 (endorsed by the EPA, the TNRCC, and various industry groups as well as Public Citizen) is an attempt to find other ways to address the problem.

Environmental groups, although they support many of SB 5’s specific proposals, are wary. Smitty says he’s tired of “losing environmental battles” at the Lege, and that many of the bill’s provisions have worked well in other states (e.g. California), but he noted that without ending grandfathering as well as additional measures, SB 5 is only a step (and an uncertain one) in the right direction. Unlike required emissions reductions, SB 5’s results are very uncertain, and activists are worried it will be used to “bust the SIPs” — that is, allow further voluntary wait-and-see while the air gets more and more polluted. “We think there are some good things in this bill,” said Mark McCloud of Environmental Defense, “but the big thing is that we have a responsibility to make the Legislature and the citizens aware: This bill does not solve the problems of Houston. It’s 2001 — I don’t think we can measure success by ‘steps in the right direction,’ but only by a SIP that has integrity, that the citizens can rely on and that will achieve real improvement in air quality.” McCloud added that it was the TNRCC, not environmentalists, who came up with such “lousy ideas” as no morning construction and no-drive days. “I don’t want to question what’s in the hearts and minds of the TNRCC,” he added, “but the effect of those kinds of proposals does undermine public support for [air pollution reduction]. That’s one of the reasons we support the measures in Brown’s bill.”

SB 5 is also intended to “pay for itself,” with various license fees (higher in nonattainment areas), perhaps a gasoline tax, and industry fees collected to fund the incentives, and a new commission to administer research in cleaner technology. Or to put it another way: With the state’s tax structure already a nation-leading burden on its poorest citizens, the Lege proposes to use yet more regressive taxation to make those citizens pay for the privilege of cleaning up the air on behalf of the corporations who polluted it, and now don’t want to “volunteer” to pay for the damages.

It’s difficult to wax enthusiastic about such “incentives.” But if we want cleaner air, that’s the way we do it in Texas.