Capitol Offenses

One Hearing, Two Bills/The Quotations of Chairman Chiz

It’s a tough committee – at least when environmental interests are on the line. Austin Democrat Dawnna Dukes now and again asks a tough question, but most of the time Zeb Zbranek is the lonesome advocate of environmental responsibility at House Environmental Regulation hearings.

The Southeast Texas Democrat is so isolated that Committee Vice Chair Ray Allen could openly reassure an electric company executive who had been questioned by Zbranek. “You’re company’s doing fine and everybody knows it,” Allen said. “You should be commended. Nobody except him and five of them out there think you’re doing anything wrong.” Except for “five of them,” Allen was not far from wrong. Attending the March 29 hearing of the two grandfathered air pollution bills were twenty-five or thirty environmentalists, and about half that number of industry lobbyists.

Yet if the hearing chamber is at times stacked with environmentalists, the committee itself is an industry forum. Vice Chair Allen, a Grand Prairie Republican, is carrying the voluntary emissions reduction bill the Governor and industry put together; Sugar Land Republican Charlie Howard is always sympathetic to industry; Houston libertarian Republican John Culberson is a free marketeer who mentions his next job in the U.S. House as he questions witnesses appearing before the committee; amiable Republican Ed Kuempel represents New Braunfels and almost always backs industry; Pasadena Republican Robert Talton knows that refineries in his district pay the bills; and Fort Worth Republican Sue Palmer is a business Republican who quickly jumped in line behind Allen to make amends with the utility executive whose feathers had been ruffled by Zbranek. Pampa Republican Warren Chisum, who chairs the committee, is the “moderate,” and Zbranek and Dukes are the green faction.

So it’s not hard to predict how the committee will come down on the two bills dealing with the 1,000 plants that have been polluting without permits and without complying with the Clean Air Act, because they were operating before the Act went on the books in 1971.

Allen’s bill (H.B. 2504) would:

Provide a public notice and comment process to allow the public to respond to permit applications;• Allow grandfathered companies to volunteer to move through the license process;Require companies to apply pollution control technology that is no more than ten years old, and as Allen said, “similar to what is now used in hundreds of plants in Texas”;Allow companies that make a good-faith effort yet fail to meet pollution reduction goals to continue operating if they participate in an “environmental mitigation” project, by which they would pay to lower pollution somewhere else, purchase and destroy high-emission automobiles, create a wildlife or plant preserve, enhance a wetland, or fund an environmental education project.

Austin State Representative Glen Maxey’s bill (H.B. 2390) would:

Mandate all grandfathered companies to go through a contested case hearing in order to obtain a license and continue to operate;Conduct a review of the effect of the applicant’s emissions on public health;Require companies to use the “best available control technology”– in other words, the most modern pollution control systems available;Eliminate the cap companies pay on emission fees, which requires them to pay only for the first 4,000 tons they emit each year. (This “volume discount” is described as both a disincentive for large volume polluters to limit their pollution and a disadvantage to smaller companies whose facilities emit less than 4,000 tons.) “By charging the biggest polluters more for their pollution,” Maxey said, “the state would raise $21.5 million annually, at a time when the TNRCC faces a funding crisis.”

For the majority on the committee, the big variable in the regulation equation is jobs – that is at least the public rationale by which committee members support business without once, in a twelve-hour hearing, mentioning profits. Increase production costs and plants might begin to shut down. That argument was best illustrated by Bill Eckard, the mining manager for Alcoa’s Rockdale power plant and the business community’s star witness. Eckard described a plant built forty-seven years ago (still the largest in the country) and now dependent on cheap lignite for fuel, while competitors, most operating abroad, use cheap hydroelectric power. Alcoa’s smelters are signed up with the Governor’s voluntary emission reduction program, upon which Allen’s bill is modeled. (Twenty-eight of the state’s 1,000 grandfathered companies have volunteered to reduce emissions, but three, Austin Representative Lon Burnam told the committee, have actually done so.) “But we have not volunteered to permit our power plant because our business will not allow us to pass on costs,” Eckard admitted. (The price of aluminum is set by international commodity markets.) “Our viability as a company depends upon our ability to continue to operate our power facility.”

Eckard said that the fate of 1,700 union job and a $100-million annual payroll, the largest in the region, are now on the line. (He did not mention shareholders’ dividends.)

When Zbranek asked if Alcoa has discussed what would be done if the state of Texas refused to permit Alcoa’s grandfathered facility at Rockdale, he fell into the trap. “I don’t think our company will build another smelter in the United States because low-cost power isn’t available here,” Eckard said. “If you go to Africa, or to Brazil, hydroelectric power is less expensive, and there is cheaper labor. I don’t think that any company will build a smelter and power plant in this country again.” Alcoa, it seems, cannot afford to compete.

In three sentences, Eckard had summed up the fundamental argument by which the grandfathered plants are kept on line: If obsolete plants are compelled to retrofit with modern pollution controls, they will shut down and leave workers to fend for themselves in the service economy.

It was only briefly suggested in a midnight exchange between Allen and Public Citizen’s Tom “Smitty” Smith, that Allen, the Governor, and the business community might still be willing to compromise. Eight hours into the hearing, Smith woke the committee with a presentation (complete with overhead projector and handouts) more suitable to a midday meeting. He borrowed from the utility deregulation debate to put precise dollar and cent prices on emission reduction – and even kept committee members engaged by explaining how business could pass the costs on to ratepayers and consumers. Allen, at least, was awake.

“If I give you complete compliance with Clean Air standards by 2005, will you support my bill?” Allen asked.

“You’ve got me interested,” Smitty said.

Two hours later, both bills were left pending before the committee, with the smart money riding on the Allen bill.

The Quotations of Chairman Chiz

It’s impossible to argue that Pampa Republican Warren Chisum isn’t growing into his job as chairman of the House Environmental Regulation Committee. Even environmentalists concede that Chisum appears to have grown more reasonable and flexible on the issue of low-level radioactive waste disposal – although his position seems to be a response to the $50-million failed effort to locate a waste dump at Sierra Blanca.

But on the issue of grandfathered plants, which are responsible for 1.6 million tons of unregulated air pollution every year, Chisum always comes down on the side of industry, and while he doesn’t beat up on witnesses who disagree with him (which usually draws a response from House Speaker Pete Laney) he does subject them to what might be described as cavalier derision. A few examples follow, from the twelve hour hearing on grandfathered air pollution:

April Johnson: I see the loopholes. I read the papers. I see how money is being paid to these legislators.

Chairman Chisum: You’ve heard testimony that the air is getting cleaner. So you know it’s better, April.

April Johnson: But companies know that the dollar comes first.

Chairman Chisum: Is there anything wrong with that? That’s the American system.

Lupe Córdova (a Galena Park parent showing a video of stack emissions near her home): I’m with Mothers for Clean Air and I work with the Galena Park School District….

Chairman Chisum (pointing at the video monitor): Is that pollution going up there?

Lupe Córdova: Yes, it’s an incinerator.

Chairman Chisum: It looks a lot like steam to me.

Susan Gregory: I feel it’s criminal to allow these companies to operate with those grandfather clauses.

Chairman Chisum: Susan, are you aware of the fact that we are living longer than ever before? They tell me I’m going to live to be sixty. We’re living to an older age, you understand.

David Griggs: Representative Allen’s bill does not allow an applicant’s residential neighbor to bring a contested case hearing. The notice and comment provision is useless. It can be ignored. Neighbors must have the right to contest a permit.

Chairman Chisum: How does going through a contested case hearing clean up the air? I’m talking about cleaning the air, not protecting citizens. I want to understand how a hearing can clean the air.

Stephanie Benold: The Texas P.T.A. is in opposition to Representative Allen’s bill and in support of Representative Maxey’s bill. We feel that it has the strongest controls…. What about parents not wanting to pay higher taxes? At our conventions, not ever, not one time, has someone said, “We cannot support that because it will raise our taxes.”

Chairman Chisum: Now Stephanie, you are not saying that cost is no object. For some people cost does make a difference.

Benold: How can you put a price on breathing clean air and drinking clean water?

Chairman Chisum: The question is, how clean is clean?

– L.D.

Lou Dubose was editor of The Texas Observer from 1987-1999. He’s authored five books, including the best-seller Shrub with Molly Ivins. He currently edits The Washington Spectator.

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