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Arsenic and Old Lakes State Regulators Fail to Fix Responsibility BY CAROL COUNTRYMAN Bryan, Commerce, Bonham ON APRIL 6, 1993, Crystal Morales’ parents took her from the hospital to their home in Bryan. She was welcomed into the family by her brother, she was loved by her parents and she was baptized. She died when she was three months old. The cause of her death was holoprosencephalya neural-tube defect that causes the cerebral vesicles to separate early in gestation and also results in severe facial deformities. Less than a year before Crystal’s birth, Neal and Cynthia Coates anticipated the arrival of their baby. Cynthia’s six-month sonogram seemed routine enough until the doctor took measurements and checked the internal organs. Then, abruptly, Cynthia was directed to the emergency room, where a radiologist did another, more powerful sonogram and found that the developing fetus had only a partial brain stem. The new baby, Cynthia was informed, had anencephaly. If he lived through childbirth, he would die soon thereafter. Though she was advised to have an abortion, Cynthia Coates chose to continue the pregnancy and on August 14, 1992 Samuel Coates was born. He died two months later. Crystal and Samuel were just two of eight children with neural tube defects who were born in Bryan between 1990 and 1993. The children have one thing in commonthey all lived near the Elf Atochem chemical plant, in which for more than 50 years arsenic acid was formulated. Elf Atochemdescribed in trade journals as the 12th-largest chemical company in the worldis a subsidiary of Elf Aquitaine, a majority of which is owned by the French government. Arsenic has been documented as a causal agent of neural-tube defects in lab animals. It is also a carcinogen. In 1992, a study conducted at UC/Berkeley concluded that arsenic was at the “forefront” of liver, lung, kidney and bladder cancer risks, as well as various types of skin cancer. The parents of those eight children, plus five others who contend that their children were affected by arsenic, settled a lawsuit with Elf Atochemreportedly for a sum of $100 million. The company’s lawyers insist Carol Countryman is a freelance writer in Tool. that Atochem was not responsible for the children’s defects. A gag order and a protective order sealing all documents were court-imposed conditions in the settlement of the lawsuit. A separate class-action lawsuit filed by the Houston plaintiffs’ firm Shapiro and Watson, on behalf 30,000 of Elf Atochem’s current and former residential neighbors, was also settled in 1994. Documents were also sealed and the settlement amount was not disclosed. To Mark O’Connor, the environmental consultant from Bryan who first blew the whistle on Elf Atochem in 1991, the gag order is disappointing. “The information contained in those court documents is important, primarily to other communities with arsenic contamination who need to know what risks are there,” O’Connor said. “But if you want to look at culpability and how something like Atochem occurs, look at the state agencies and how they allowed it to happen.” THE BRYAN CHEMICAL PLANT, first known as Cotton Poisons, began operating in the early 1940s. Several years after it opened it was acquired by Pennwalt, a company with corporate headquarters in King of Prussia, Pennsylvania. Elf Atochem acquired Pennwalt in 1989. From the 1940s through 1993, arsenic acid was sprayed on cotton just as the plants finished growing, to kill, or dessicate, the cotton plant, making it easier to strip the boll. Although arsenic production was extremely profitable, only two facilities in the United States converted granular arsenic into the liquid arsenic acid used for cotton dessication. Both were located in Texas: Elf Atochem in Bryan and Voluntary Purchasing Group, located in Bonham. Voluntary Purchasing’s subsidiary, Hi-Yield Chemical, is now responsible for two arsenic-contaminated Superfund sites that the company acquired in Commerce and Houston, and a third site, is under consideration for EPA Superfund status. For about 30 years, Atochem went almost unmonitored by state regulators. Waste products from the plant were discharged into Finfeather Lake and Municipal Lake, which flow through the city of Bryan, and both lakes were contaminated. In 1969, the Texas Water Quality Board \(later to become the Texas Water Commis sion, which in 1994 was merged into the Texas Natural Resources Conservation levels of arsenic contamination in Finfeather Lake. Although the state called for the , facility to stop the discharge and to clean up the two lakes, the company continued to discharge contaminants for more than 20 years, according to internal agency documents. In 1972, the Water Quality Board found arsenic concentrations ranging from 1-to-10 parts per million in water taken from the lake, while sediments had concentrations as high as 4,000 ppm. At that time, 100 ppm arsenic was considered hazardous, but in recent years the Environmental Protection Agency has lowered its arsenic Superfund cleanup level to 20 ppm, and in some areas, the EPA has set the cleanup level as low as 7 ppm. Throughout the 1970s and ’80s, the state ordered a long list of corrective actions for the company. Compliance with the orders was mostly voluntary. For instance, in 1982 the company was asked to submit a groundwater cleanup plan, but for unknown reasons it took five years and countless hours of work by state officials before the company would comply and submit the plan. Although the state rejected the planand several othersbecause the remedies for cleaning up the contamination were insufficient, the company was not required to pay a fine. “The worst-case scenario eventually occurred,” said Jack Matson, a chemical environmental engineer who Gov. Ann Richards appointed to the Texas Air Control Board. “Since the company had to do something with this wastewater, they put it into their cooling towers and scrubber and discharged it through the air. So, basically what they did was convert a water problem into an air problem.” Only the company didn’t clue the regulatory agencies in to what they were doing. “It wasn’t legal, but no criminal action was taken at the time,” Matson said. The discharge from the cool , ing towers was not the only environmental hazard visited upon families that lived near the plant and were not informed of the risks they were exposed to. In 1979, 1,000 pounds of highly toxic arsenic trioxide billowed from Elf Atochem’s stacks and the cloud descended on the surrounding neigh 6 FEBRUARY 24, 1995