For the weak and the vulnerable, Texas has long been an especially hard place. Year after year, national surveys place the state at or near the bottom in such categories as assistance to poor children and the malnourished, treatment of the mentally ill and care of the disabled. This story is part of The Dallas Morning News' 'State of Neglect' series examining how the state determines whom it protects and whom it excludes – and how special interests and their lobbyists strongly influence the writing of laws and the workings of state government.
Sal Mier used to think fighting infectious diseases was tough. That was before he stepped into the politics of Texas pollution.
The retired federal health manager as sumed that if he asked experts whether decades of industrial emissions in his adopted hometown of Midlothian had hurt anybody, people would at last get a clear, impartial answer to a nagging question."I assumed wrong," Mier said recently. "I really didn't understand it very well."
What people got instead was a full-scale assault by one Texas state agency on another's credibility, a $349,000 state study that even its sponsor didn't want to do, a citizens' advisory committee that excluded anyone who knew anything about the situation, and for an answer to the original question – is Midlothian's air safe? – so far, a big Maybe.
People also got a glimpse at the clout of heavy industry, which has spent millions of dollars building political support in Austin and Washington, managing to fend off repeated environmental reform efforts. The result has been state laws studded with elements that critics say protect industry instead of people.
"It's an amazing system, and it's completely corrupt, and it's completely bankrupt," said Jim Tarr, a former Texas environmental inspector who consults for community groups. "And it ha s left the people of the state of Texas in dire need of a housecleaning."
Also OnlineDownload: Read the Texas Department of State Health Services' December 2007 report on Midlothian air quality
Download:
Read TCEQ's comments on the state health department's Midlothian air quality reportLink:
See the Texas Department of State Health Services' Midlothian air quality petition siteLink:
TCEQ plan for additional Midlothian air-quality monitoringLink:
Texas Aggregates and Concrete AssociationLink:
Downwinders at RiskFollow the full
State of Neglect investigative series
Gov. Rick Perry's appointee as chairman of the Texas Commission on Environmental Quality, Buddy Garcia, disagrees.
"I think there's a very good balance right now the way we do it and what we look for on the front end before we give permits, and then especially on the enforcement side," said Garcia, who was Texas deputy secretary of state when Perry tapped him for the TCEQ in 2007.
"I'm a very big proponent of making sure we enforce the laws," he added. "That's the contract we have with the state, and that's our obligation here."
Perry, however, often adds another obligation about the environment: safeguarding corporations' bottom lines. Texas is proud, the governor said in a recent speech, to have "a regulatory system that protects our citizens and environment without strangling prosper ity."
For Mier, who in 1994 retired from running federal education programs on HIV and sexually transmitted diseases, the story of Midlothian's pollution teaches a lesson about profits and public health.
"When a health problem is linked to viruses or bacteria, nobody cares," he said. "When it's linked to industry, it's very, very different."
Strip malls, strip minesMuch of Midlothian looks like every other farm town shaking off its bucolic past for a subdivision present. The crossroads-and-railroad downtown has some old, two-story buildings and new convenience stores. Housing developments and office parks sprawl in former hayfields.
But Midlothian is also the heavy industrial center of North Texas, churning out materials that literally build the region. Giant factories form odd, jarring skylines over verdant hills and fresh neighborhoods, with lights blazing all night, conveyors and gigantic rotating kilns humming and cranking, trucks coming and going, and pollution plumes rising.
Dallas-based TXI's Midlothian cement plant, with five kilns, is the state's biggest. Ash Grove of Kansas, with three kilns, and Swiss company Holcim, with two, are nearby. Each has big strip mines for limestone, cement's chief ingredient.
Adjacent to TXI, a steel mill melts trainloads of scrap metal and crushed cars into new structural steel. Brazil's Gerdau Group owns Gerdau Ameristeel, a former TXI subsidiary originally called Chaparral Steel.
The kilns cook limestone and other ingredients at 2,700 degrees Fahrenheit, using as fuel coal, natural gas, roofing debris, shredded tires or, in the case of TXI, other industries' hazardous waste – contentious for decades, but legal.
TXI said in August it would idle indefinitely its four older kilns, the ones that can burn hazardous waste, because of a market slowdown and keep its newer kiln going. But the company is continuing its effort to renew the old kilns' permits for the day when sales rebound.
The Midlothian plants dominate North Texas industrial pollution. In 2006, the most recent year available for such data, they were among Texas' 40 biggest sources of smog-causing nitrogen oxides.
Holcim ranked 10th statewide in carbon monoxide. Gerdau Ameristeel was 10th in lead, topped locally only by Exide's Frisco battery plant, which was fifth. Holcim was 14th in tiny, inhalable particles. All three cement plants were among the top 32 in sulfur dioxide.
The federal Toxic Release Inventory yielded similar results. In 2006, TXI's Midlothian plant ranked 23rd among 1,488 Texas facilities in routine chemical releases – 547,148 pounds. Chemicals in the emissions have been linked to cancer, birth defects, nervous system disorders and other illnesses, but how they aff ect people depends on personal factors and the amount and duration of exposure.
Using the EPA's Risk Screening Environmental Indicators software, The Dallas Morning News compared industrial emissions in Texas. In 2005, the most recent year the software contains, TXI's emissions had the region's highest toxicity score – based on the type and amount of pollution and the number of people potentially exposed, the newspaper found. TXI ranked 10th statewide.
The industry, Midlothian civic leaders and Texas regulators say that despite the big numbers and towering smokestacks, the plants are safe.
TXI vice president D. Randall Jones said the industry has invested millions to cut pollution. He said he believes those efforts will form the basis of the health department's final conclusion, which isn't out yet.
"I'm confident that it's going to be that the air in this area is safe for human health and the environment," he said.
In the context of the whole metropolitan area, the Midlothian heavy industries aren't huge employers – between them, the cement plants and the steel plant have at most 1,500 workers, about two-thirds at Gerdau Ameristeel – but their payrolls, property taxes, sales and purchases make them economic powers.
That's why it seems unlikely that one woman who lives with her husband and horses in an older, woodsy neighborhood five miles north of the town center would challenge how Texas regulates those big plants.
'Just a housewife'Sue Pope says she's "just a housewife." But 16 years ago, she started investigating industry assurances after her father's cows and her horses stopped breeding. Learning that TXI and North Texas Cement – now owned by Ash Grove – were burning hazardous waste, she thought they might be to blame. (Ash Grove does not burn hazardous waste now, and TXI has announced it will idle its waste-burning kilns).
Pope learned of neighbors with animal problems and about human health compla ints, too – breathing problems, headaches, even cancer and birth defects. She founded Downwinders at Risk and has led the group, now among Texas' oldest local grassroots groups, through research projects, lawsuits, protests and permit fights.
With filmmaker and veteran community organizer Jim Schermbeck as its chief researcher and spark plug, the group has educated lawmakers, successfully pressed cities to buy cement only from the cleanest-burning kilns, championed deeper cuts in the plants' smog-causing emissions and dug up minute details of cement plants' environmental performance.
One battle over Holcim's failure to achieve required pollution cuts after an expansion led to a settlement in which the group dropped its opposition to a new permit in exchange for better air monitoring and a $2.25 million payment by the company.
The money allowed the creation of the Sue Pope Fund, which provides grants to North Texas groups and governments. First-round recipients last year are teaching green development and building sustainable homes for low-income people, boosting clean transit and cracking down on phony vehicle emissions stickers.
Such victories lead Pope to believe the message is getting through. "Fortunately, I think the general public is waking up to what's going on," she said.
The victory, however, is incomplete. At least three state reviews since 1996 have found unexpectedly high rates of birth defects in Midlothian and surrounding communities. Four reviews of cancer cases or deaths haven't found high rates. In no case has the state said it could find a link between local health concerns and the plants' emissions. The industries and state regulators say that's because the amounts in the air are too small to harm people. Pope says it's because agencies haven't investigated seriously.
And Pope, 68, is left with a painful personal legacy. She blames Midlothian pollution for her immune disorder, the unexplained death of her son six years ago at age 47, and her husband's prostate cancer – none of the links proven or disproven, a common frustration for people facing possible toxic risks in their communities.
But she keeps on fighting. "I guess I'm just stubborn," she said.
Cementing relationsCement is political material.
The industry, through its political action committees, has handed out more than $2 million to Texas politicians since 2000, state reports show. Combined with its lobbying firms, the total reaches $12.6 million – not counting money from allies such as the Texas Association of Business, Texans for Lawsuit Reform, and the Texas Mining and Reclamation Association.
TXI, for example, gave nearly $283,000 from 2000 through 2008. Its lobbyists, Albert Axe and former TCEQ chief lawyer Derek L. Seal, work for the Winstead P.C. law firm, which gave almost $926,000 in that period.
Ash Grove has given just $7,500 in Texas since 2000. Its lobbyists – including the Vinson & Elkins law firm, Austin's HillCo Partners lobbying firm and others – doled out $6.25 million.
The state's top elected officials have received more than $1.8 million from the industry and its lobbyists since 2000: $921,714 for Perry; $891,450 for Lt. Gov. David Dewhurst.
The industry hasn't neglected Washington, D.C., either. A chief beneficiary is Rep. Joe Barton, R-Texas, from Ellis County. Since 2000, Texas cement companies and their lobbyists have given him $103,500, records show.
Barton went to bat for his home turf industries in 2004, pressing the U.S. Environmental Protection Agency not to extend tougher anti-smog rules to Ellis County. The EPA rebuffed the congressman.
Still, political muscle has served the in dustry well. Year after year in the Legislature, bills favoring the industry have tended to become law, while those the industry opposed usually died quietly.
If some of those failed bills had become law, the Midlothian air study might never have been necessary. Pollution could have been drastically reduced years ago, far below today's levels.
"Our industry is one that people have taken some shots at, as far as quarrying activity or concrete plants or cement kilns," said Michael Stewart, executive director of the Texas Aggregates and Concrete Association. "By and large, we've been successful in fending off those efforts."
Seeking answersWhen wondering who might untangle the conflicting claims over local pollution, Mier thought of his former employer, the federal Centers for Disease Control and Prevention – specifically its environmental arm, the Agency for Toxic Substances and Disease Registry. So he contacte d the agency.
"I thought that there would be a team coming out from Atlanta [headquarters]," Mier said.
Instead, the ATSDR did what it frequently does: It farmed the job out to locals, in this case the Texas Department of State Health Services, which had already declared Midlothian industries safe as far back as 1993.
For critics of Austin's support for the industry, state involvement was bad news. "It's a conflict of interest," said Pope. "Have you seen what the highways are made of?"
In charge of the new review was Dr. Richard Beauchamp, the health department's senior medical toxicologist. He had issued the earlier all-clear in the 1990s.
"I had concluded previously that [Midlothian emissions] didn't appear to be a problem except for a few limited things, I think for sulfur dioxide and particulates or something like that," Beauchamp said in a interview.
That was based on summaries environmental regulators provided. This time, the health department asked the Texas Commission on Environmental Quality for the raw data so the department could reach its own conclusion. The health department gathered no new information, a common but controversial approach that saves time and money but often leaves key questions unanswered.
The draft report, issued in December 2007, refused to endorse the previous blanket assurances. Neither, however, did it say there was a problem. Not enough data, the health department said.
The main data gap concerned chromium. The TCEQ believed that virtually all in the local air was trivalent chromium, a low-toxicity type, but had no measurements to back that up.
"They were basing that on their experience at other sites in the state and assuming that the same thing applies to Midlothian," Beauchamp said. "I can't assume that the ratios are going to be the same in Midlothian. I can't really make that conclusion until I see some hard data."
Until proved otherwise, the health department said, it had to assume that people were breathing hexavalent chromium, the most toxic, cancer-causing type.
However, the health department skipped several questions on the minds of local residents. It drew no conclusions about dioxin and mercury because the TCEQ didn't know how much of those contaminants were in local fish, the main exposure source for people.
Health investigators also turned down an offer to check Debra Markwardt's dogs as surrogates for human exposure. Pups grow up sick if they stay with her and healthy with new owners elsewhere, said Markwardt, who lives about a mile from TXI and Gerdau Ameristeel.
Dr. William Cibulas, head of health consultations for the federal agency overseeing the study, replied in a December e-mail that while "sympathetic toward the plight of your animals," that was "outside of our mandated domain."
Markwardt sensed a b rushoff: "They use animals for testing all the time," she said. Cibulas didn't respond to a request for comment.
Markwardt sued TXI and Gerdau Ameristeel last year, alleging damage from air pollution. The companies filed a joint response this month denying any harm and saying Markwardt waited too long to sue.
The state health department also didn't try to assess potential risks that might have collected in the soil during Midlothian's 50 years of heavy industrial emissions. Just since 1990, when comprehensive records begin, pollution from the cement and steel plants total nearly 1 billion pounds, according to a 2008 study by University of North Texas geography students Amanda Caldwell and Susan Waskey.
The total includes 10,000 pounds of mercury, 91,000 pounds of lead and 400 million pounds of sulfur dioxide, which contributes to acid rain and can cause breathing problems.
The health department's overall conclusion was that air in Midlothian posed an "indeterminate" risk – an answer that20pleased no one, including the TCEQ.
"They were a little bit upset, I guess, that we didn't really continue through with that same thing and give it just a blanket clean bill of health on the basis of that sort of information," Beauchamp said.
Riddled with errors?That may be an understatement. "Shocking" is how Dr. Michael Honeycutt, chief toxicologist for the TCEQ, described it.
On top of that, he said, he learned about it from reporters.
"They spent two years working on this, and they didn't communicate with us in the meantime, which was unfortunate because they weren't looking at the right data set," Honeycutt said. "We got the report after you. We read about it in the paper, and then we got a copy of it."
Upon reading it, he said, "it took about five minutes for us to realize that, oh, something's not right."
Weeks later, after numerous meetings with the health department, the TCEQ filed a 29-page response saying the draft report was riddled with errors. The TCEQ also complained that the draft might undermine public confidence in Texas' environmental protection.
"To come up with an 'indeterminate,' I think that that can just make the community be unduly concerned," Honeycutt said.
Beauchamp said his final report may conclude there is no risk from chromium or anything else. But not yet. The TCEQ has been forced to go back to Midlothian and produce the data the health department wanted – to find out whether the chromium emissions are fairly harmless or an exceedingly powerful carcinogen.
The first of four five-day monitoring periods scheduled over a year took place in early December, when TXI's four older kilns were idle. TXI's status might affect the chromium's numbers, TCEQ officials conceded, depending on whether the older kilns are operating during any testing.
Scientists contacted by the residents who requested the health department study were also extremely critical, but for different reasons.
One was Dr. Stuart Batterman of the University of Michigan, an expert on industrial emissions who had written a damning report on the state's assurances on Midlothian in the mid-1990s. He also reviewed the latest study.
"The health consultation is biased," Batterman wrote in his review. "It contains overarching statements that discount all indications that emissions from local industry and environmental conditions might or do pose a health concern in the community."
The report frequently used flawed methods for assessing risks, he wrote, and wrongly focused only on exposure by breathing – neglecting skin contact, ingestion and other ways chemicals can enter the body. "It is unacceptable and misleading that the healt h consultation completely excludes this discussion,"
Batterman wrote.
The city steps inIn reluctantly launching its new chromium monitoring, which is costing $349,000, the TCEQ got local input – but not from the residents who have spent more than a decade studying the situation.
Instead, the TCEQ went to the city of Midlothian, regarded by some as a cement company town; TXI executive and lobbyist Maurice Osborne was mayor for 12 years.
City Manager Don Hastings insisted that the industries don't dictate city affairs. He said he specifically wanted residents who didn't have a history of involvement in local air pollution controversies to advise the TCEQ: "no strongly pro-industry kind of lobbyist types, but probably also no other folks from an extreme perspective of the other sides of the issues as well," he said.
Hastings said the group didn't want to substitute its judgment for the TCEQ's, but he did suggest that the agency put some of the air monitoring stations near schools in hopes of addressing parents' concerns.
According to a list that the city provided The News under the Texas Public Information Act, the nine members of the city's focus group included a pastor, a doctor, real-estate and insurance agents, a couple of lawyers and two engineers. The organizer was Midlothian resident Cathy Altman, who practices law in Dallas and recently served as chairwoman of the North Texas Clean Air Coalition, a business-backed group that promotes voluntary emissions reduction efforts.
TCEQ briefing materials for the group said a goal was to "encourage open communication with citizens through this Focus Group." However, there's no evidence that its meeting schedule or even its existence – or the fact that the state was conducting more air monitoring in Midlothian – were ever announced to the public.
Mier, who triggered the Midlothian air review, said he learned about the city's focus group from vague references in the TCEQ's 70-page solicitation for a monitoring contractor.
According to an e-mail from Altman to Hastings, Altman called Mier but did not invite him to join the focus group; Mier said he probably wouldn't have joined anyway, because he didn't see much point in having non-experts advise the state.
"It seemed like they were going through the motions to try to show that they were interested in getting community input," he said.
The News found no record indicating that Altman asked anyone from Pope's group, Downwinders at Risk, or from the industries to take part. Altman referred questions to Hastings.
However, e-mails show that cement maker TXI gave health department and TCEQ officials a tour of its plant before a focus group meeting.
Mier said his first peek into how Texas handles a big environmental controversy leaves him convinced the final word will be, once agai n, that everything's fine in Midlothian.
"I think they'll succumb to the TCEQ," he said. "They always do."
Midlothian emissionsTotals for some key emissions:
2000
2002
2004
2006
Chromium
573
705
1,008
634
Lead
4,143
3,752
2,050
1,114
Manganese
7,998
8,994
7,612
7,299
Mercury
848
758
811
813
Sulfuric acid 1,416,045
606,500
581,838
618,036
Capitolism, cement-styleThe cement industry has had many victories in the Texas Capitol, including the=2 0ones below.
These listings include legislation beginning in 1993, the earliest year when bill texts are available online; and campaign donations as of 2000, the year when campaign finance reports went online.
Listings include campaign contributions that bill authors or – in the case of industry-opposed bills that died in committee – committee chairmen have received from the industry or its lobbyists.
1993•HB 2244, to force cement kilns burning hazardous waste to meet the same standards as commercial waste incinerators.
Outcome: Industry opposed. Died in House Environmental Regulation committee.
Author: Rep. Helen Giddings, D-DeSoto. Cement money: $22,000.
Committee chairman: Rep. Warren Chisum, R-Pampa. Cement money: $36,600.
1995•SB 776, to pay cement companies to burn shredded waste tires in their kilns, which the bill calls "energy=2 0recovery facilities."
Outcome: Industry supported. Passed; signed by then-Gov. George W. Bush.
Author: Sen. J.E. "Buster" Brown, R-Lake Jackson. Cement money: $10,405 (covers only 2000; retired in 2001. In 2008, 18 lobbying clients paid him up to $1.375 million).
Note: Tire payment program expired in 1997. In 2003, the state gave TXI and Cemex grants of $1 million each to retrofit their kilns to burn tires.
1997• SB 1538, another attempt to put cement plants under the same rules as commercial waste incinerators.
Outcome: Industry opposed. Died in Senate Natural Resources committee.
Author: Sen. Royce West, D-Dallas. Cement money: $62,000.
Committee chair: Sen. J.E. "Buster" Brown, R-Lake Jackson. Cement money: $10,405 (covers only 2000; retired in 2001. In 2008, 18 lobbying clients paid him up to $1.375 million).
• HB 1008, to prohibit cement kilns in a metro area of more than 1 million from burning hazardous waste.
Outcome: Died in House Environmental Regulation committee.
Author: Rep. Jesse Jones, D-Dallas. Cement money: $2,500 (lost 2006 primary).
20 Committee chairman: Rep. Warren Chisum, R-Pampa. Cement money: $36,600.
1999• HB 2134, to restrict new batch plants near schools and neighborhoods.
Outcome: Industry opposed. Died in House Calendars committee.
Author: Rep. Burt Solomons, R-Carrollton. Cement money: $37,181
Committee chairman: Rep. Barry Telford, D-DeKalb. Cement money: $18,850 (retired 2004; now lobbies for the Texas Retired Teachers Association, making up to $150,000).
2005• HB 2742, to prohibit hazardous waste burning in cement kilns.
Outcome: Died in House Environmental Regulation committee.
Author: Rep. Jesse Jones, D-Dallas. Cement money: $2,500 (lost 2006 primary).
Committee chairman: Rep. Dennis Bonnen, R-Angleton. Cement money: $39,838.
• SB 1272, to ban contested case hearings on new local cement-mixing stations, called batch plants, which generate noise, dust and traffic complaints.
Outcome: I ndustry supported. Passed; signed by Gov. Rick Perry.
Author: Sen. Ken Armbrister, D-Victoria. Cement money: $45,500 (left Senate in 2007 to become Mr. Perry's legislative director).
• SB 15, to make it harder for workers to win damage suits after breathing asbestos and silica sand, the latter a raw material in concrete.
Outcome: Industry supported. Passed; signed by Mr. Perry.
Author: Sen. Kyle Janek, R-Fort Bend. Cement money: $57,250 (left Senate in March 2008; now vice president for business development of Austin-based Biophysical Corp., a medical test developer).
2007• SB 1177, to require state regulators to test pollution-cutting technology called selective catalytic reduction on a cement plant in North Texas.
Outcome: Industry opposed. Passed Senate; watered-down House version died in House Calendars committee.
Author: Sen. Kim Brimer, R-Fort Worth. Cement money: $92,328 (defeated for re-election in 2008).
Committee chairman: Rep. Beverly Woolley, R-Houston. Cement money: $39,347.
SOURCES: Legislative bill search (www.capitol.state.tx.us); Texas Ethics Commission (www.ethics.state.tx.us).
