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in the “existing regulatory structure.” Take, for example, the case of Valero Energy Corporation. Corpus Christi resident Alfred Williams came to tell legislators about ongoing problems he and his neighbors have had with the company’s refinery, located about one mile from his neighborhood. Valero’s refinery suffers “upsets” that is, unexpected or non-routine emissions on a weekly basis. When that happens, Williams says, sulfur dioxide rains down on his neighborhood. Sulfur dioxide can cause respiratory problems, particularly in children and the elderly, and can aggravate existing cardiovascular conditions. It is also a precursor of acid rain. “It falls on your car. Eats up the metal. Destroys your plants,” Williams said. “Everyone in my neighborhood has respiratory ailments.” For years, Williams called the T.N.R.C.C. regional office during particularly bad upsets. If the upset occurred on weekends or evenings, he got a recording. If an inspector did come out to the neighborhood, it was usually hours later, or the next day, by which time the event had passed. “They said, we don’t smell anything. Then they left,” he recounted. In fact, Williams \(who has since joined ered that such upsets were not necessarily violations of the refinery’s permit. Provided they are promptly reported to the T.N.R.C.C., the company will generally not be fined, under agency rules for unplanned emissions. That is a lucrative loophole, as Williams’ attorney, Mike Davis, discovered. Davis and his associates found that from 1995 to 1998, the refinery actually released more emissions through upsets than it did through normal emissions, raising the question of how “unplanned” the upsets actually were. When the upsets which came at a frequency of one every four or five days were factored in, the company far exceeded its permitted emissions for each of those years. This is also allowable under current T.N.R.C.C. policy. During a brief interview outside the hearing room, T.N.R.C.C. executive director Jeff Saitas acknowledged that upsets as a rule are not considered violations, but that a fine is called for when a company has “significant upsets.” Asked how Valero \(and other unnamed companies described in the through upsets, Saitas expressed disbelief. “I have a hard time understanding that, how they could do that without harming public health. You cannot at any time harm people without violating the law,” he said. That’s a comforting thought. Yet the Valero refinery has never been fined for upsets, despite reporting to the agency several sulfur dioxide releases that would be “significant” by any reasonable standard, including: 11,400 pounds in a forty-five minute period on February 9, 1995; 208,000 pounds over a twenty-hour period on May 13, 1995; and 167,310 pounds on September 12, 1995. In all, the company reported forty-four upsets in 1995, a year in which the refinery’s upset emissions were over ten times larger than normal permitted emissions. In an unfortunate coincidence for the agency, that was the year the refinery won the Governor’s Award for Environmental Excellence. \(That was the also the year the company began donating to the Governor’s campaign coffers, beginning with $6,000 in the fall of 1995, and totaling at the award, then T.N.R.C.C. Chairman John Hall \(who knew that a suit had been filed against the company by its neighbors, according to documents collected by attorfor the wonderful job it is doing to improve the quality of life in the community. Valero is an industrial leader with regards to environmental quality.” In fairness to agency staff, Valero’s apparent abuse of the upset loophole would have been difficult to track: the company failed to tabulate upsets in its annual report for three years in a row, and buried the numbers inside the 400-page document in other years. It took hundreds of hours of research in both the Austin and regional T.N.R.C.C. offices \(as well as the discovery process proneys to tabulate the damning numbers on Valero. It’s that type of reform tracking of compliance history and better recordkeeping that is most likely to be a product of Sunset’s review of T.N.R.C.C. More significant reforins are possible, but less likely to make it through the legislature. Sunset staff recommended two changes that envi ronmental groups have sought for years. One is to make the Office of Public Interest Counsel, which helps represent citizens who challenge the agency’s permit decisions, a truly independent entity, with a bigger budget and a director appointed by the Governor, rather than one hired and fired by the commissioners themselves. A second is to prohibit the current practice of having the agency’s executive director act as an advocate on behalf of industry in such disputes. Currently, the director’s role is to defend the agency’s preliminary decision to grant a permit; he is thus a de facto ally of industry in the trial-like proceedings, which take place before the three-member board of commissioners. The Sunset Working Group recommended that the director instead be available as an impartial resource witness, if called upon by the commissioners. Industry groups like the Texas Chemical Council oppose this reform, for obvious reasons. The agency opposes it as well, despite admitting that the current practice poses a “public perception problem.” Outside the hearing, current executive director Jeff Saitas explained his objections. “On the one side you’ve got this well-funded applicant, on the other maybe a citizen’s group or a municipality, that’s not so well-equipped,” Saitas said. It’s up to the director to make sure that the factual record is complete, and that the commissioners hear all of the pertinent information; things might otherwise be too lopsided. \(Never mind that the director has already sided against the protestant by words, citizens and environmentalists not to mention the Sunset staff have it all exactly backwards: Saitas is there to help the little guy. Many across the state have grown tired of receiving this brand of help from the agency. At a rally held on the Capitol steps prior to the beginning of public testimony, San Antonio environmental justice activist T.C. Calvert seemed to capture the prevailing sentiment. “They always think they’re the experts,” he said. “But we have to live with the pollution 365 days per year, and that makes us the experts,” he told the crowd. Calvert, for one, has grown tired of waiting for reform. Waiving a broom over his head as he railed against Saitas, Bush, and the state’s polluting industries, he shouted, “Do we need a clean sweep?” “Yes!” came the reply. JULY 7, 2000 THE TEXAS OBSERVER 7