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FEATURE Who’s Poisoning Texas? Part One: Why the States Biggest Polluters Won’t Clean Up Their Act? BY MICHAEL KING “There is no evidence that human health is damaged by these emissions. … If we thought we were doing something harmful to human health, we would do something about it ” Dick White, Vice President for Environmental Affairs, Texas Utilities \(Dallas Morning News, exas is being poisoned. That’s one reasonable conclusion to be drawn from the myriad statistics, scientific studies, official documents, public hearings, newspaper reports, press releases, and political speeches addressing the various forms of environmental pollution. On the specific question of air pollution, the major urban areas of the state already violate the current federal standards for clean air, and several additional areas are on the borderline. Across the political spectrum, most Texans concede that the state has an air pollution problem, and that something needs to be done about it. The consensus immediately breaks down, however, concerning the extent of the problem, its seriousness, how much should be done, and how soon. The range of the disagreement was exemplified by testimony early this month before a House subcommittee hearing on “grandfathered” pollution. Environmentalists, citizen advocates, and neighborhood groups charged that industrial air pollution, particularly by grandfathered facilities, is massive and dangerous, and that current environmental regulations protect corporate profits at the expense of public health. “We are under siege,” said LaNell Anderson, a community activist from east Harris County, “and we believe it is a crime, because these chemicals kill people…. We are being crucified on industry’s cross of gold.” The chairman of the environmental subcommittee, Representative Ray Allen, bristled at what he called the citizens’ “inflammatory rhetoric,” and industry representatives responded in chorus that the problem is under control, and no mandatory changes are necessary. Wade Stansell, environmental program manager for Texas Utilities, told the committee, “Texas is a clean state…. Power plants are well-controlled, and the state has done a good job.” Stansell’s company is the state’s largest utility, its largest industrial air polluter, and its largest beneficiary of grandfathered pollution exemptions. The grandfathered exemption dates to the Texas Clean Air Act of 1971, which established permitting procedures and pollution limitations for new industrial polluters but simultaneously exempted from the regulations those “grandfathered” companies in operation or under construction at the time the law Conservation Commission defines it, The term “grandfathered” means that a facility is exempted from having to obtain a state preconstruction permit, and from the associated requirements of best available air pollution control technology, public notice, and a review of the facility’s impact on public health. At the time the Clean Air Act was passed, the companies and their supporters in the Legislature argued that grandfathered facilities would be phased out or upgraded over time, and before long all industrial facilities would fall under the state’s air pollution requirements, mandated by the Act and now administered by the TNRCC. Nearly three decades later, that hasn’t happened. While they remain subject to some general anti-pollution requirements facilities continue to operate without formal permitting procedures, without public health effects review, and without mandated improvement requirements all of which are required under the state permitting rules for non-grandfathered facilities. There are several thousand grandfathered facilities \(owned by they account for a major portion of the state’s air pollution \(althered facilities include both single sources and large plants \(which under increasing public pressure to reduce that pollution, most immediately by becoming subject to the TNRCC’s permitting procedures, which would theoretically move them toward technological upgrades and reduced emissions. In response to the growing public pressure, Governor Bush and the Legislature, under the state’s “voluntary” program, under which grandfathered companies are being persuaded to agree to some form of flexible permitting. As .of April 1, thirty-six companies had signed on. Jeff Saitas, the TNRCC’s deputy director for air quality, bluntly assessed the motives of those grandfathered companies which have volunteered to join the CARE program: “They’re doing it because of you [the media]. You’re writing stories about it. Many companies know that this issue’s time has come. You can’t defend it in front of the public. You can’t defend it in front of elected officials why it’s okay to have emissions from facilities that aren’t a part of the permitting process for twenty-seven years. These companies know that, and they want to address it in a way that shows leadership on the issue.” Precisely how much the volunteer companies will now be required to do is unclear. Once they enter the program, according to Saitas, the agency’s intent is to move the facilities toward “best available retrofit technology” or BART \(the best pollution controls acknowledges, would require new legislation, and are not currently mandated under CARE, which has thus far been confined to the 8 THE TEXAS OBSERVER APRIL 24, 1998