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From the Senator's Desk. . .
February 4, 2010

Texans want to leave a cleaner, healthier state for their children and grandchildren to enjoy. Despite this, Texas' air and water are amongst some of the dirtiest in the nation. Texas is first in the nation in air pollution emissions, the amount of cancer-causing carcinogens released into the air, and the amount of carbon dioxide emissions. It's second in the amount of hazardous waste generated and seventh in the amount of carcinogens released into the water. We have a governor and environmental agency that prides itself in opposing increased air standards that would save both lives and money.

Written by Senator Eliot Shapleigh, www.shapleigh.org

"Cronies at the Capitol—Connecting the Dots at TCEQ"

Texans want to leave a cleaner, healthier state for their children and grandchildren to enjoy.  Despite this, Texas' air and water are amongst some of the dirtiest in the nation.  Texas is first in the nation in air pollution emissions, the amount of cancer-causing carcinogens released into the air, and the amount of carbon dioxide emissions.  It's second in the amount of hazardous waste generated and seventh in the amount of carcinogens released into the water.  We have a governor and environmental agency that prides itself in opposing increased air standards that would save both lives and money.   

So where is the disconnect?  Where does the public pressure to clean our soil, waterways, and skies get lost in Austin?  Let's connect the dots.   

Much of the blame lies with the state's environmental agency, the Texas Commission on Environmental Quality (TCEQ), which has been captured and corrupted by polluters—especially in the permitting process.  Polluters have been able to work the system so well that their needs and goals are addressed far in advance of the average Texan's.  Two recent examples connect the dots: the ASARCO smelter in El Paso and the Waste Control Specialists (WCS) permit in the panhandle.   

For over a century, ASARCO's El Paso smelter released thousands of tons of contaminants into the bi-national airshed of El Paso and Ciudad Juarez.  120 years of pollution and environmental degradation has left our community with soil full of arsenic, lead, cadmium, mercury, and other heavy metals.  Years of ASARCO's arsenic have created a 233 million cubic foot plume of toxic water in aquifers right near the Rio Grande.  The actual smelter site is even covered with a shell of slag an astounding 75 feet thick. 

Further, there are contaminants that the community still cannot identify.  A smoking gun memo obtained from the Environmental Protection Agency (EPA) through a Freedom of Information Act request and the Federal Department of Justice." shows that 5,000 tons of hazardous waste, including 300 tons of residues from the Rocky Mountain Arsenal, were illegally burned by the smelter.  What exactly was burned—be it nerve gas or other chemical weapons—has never been disclosed to our community. 

Beyond El Paso, ASARCO is well-known throughout the United States for having contaminated communities across the country.  In fact, it recently went through the largest environmental bankruptcy in U.S. history.  The bankruptcy proved to be a test case for polluters across the country: could a privately held company declare bankruptcy in order to shed environmental liabilities, thus forcing taxpayers to foot the bill?  As Sen. Maria Cantwell (D-WA) said, "[ASARCO's parent company] tried to use a bankruptcy court to avoid ASARCO's cleanup responsibilities, and they almost got away with it."  

With that as the backdrop, in 2002, ASARCO began the application process at TCEQ to have their air permit renewed.  Since the permit would have allowed ASARCO to emit annually over 7,000 tons of pollutants, the affected communities united behind the goal of never again having the company poison their air, water, and soil.  During the process, TCEQ commissioners referred the matter to two administrative law judges who conducted a ten day hearing in El Paso.  After careful consideration, both judges found that ASARCO had failed to meet their burden of proof and recommended denial of the permit renewal.   

Yet despite public outcry and against the recommendations of the administrative law judges, TCEQ's executive director Glenn Shankle supported the permit's issuance.   On February 13, 2008, the TCEQ commissioners voted 3-0 to grant ASARCO the controversial operating permit.  The decision followed six years of litigation, a contested case hearing, and well-publicized opposition from organizations and governments in Texas, New Mexico, and Chihuahua, Mexico.  On February 14 and 18, 2008, our office submitted two public information requests to TCEQ, requesting various communications between TCEQ commissioners, ASARCO, and ASARCO's legal representatives, including personal cell phone and email records that relate to the transaction of official business.  The requests were made under the "legislative purpose" statute, which allows legislators to gain access to otherwise confidential information provided that it is for a legislative use.  

TCEQ immediately began fighting our request, delivering an 18-page brief to the Office of the Texas Attorney General (OAG) arguing that the records are confidential and should not be made available to our office.  Citing executive privilege and a violation of separation of powers, TCEQ argues that the statute is unconstitutional—that legislators and the public they represent have no right to documents in the possession of agencies created by that very same legislature.  As such, they are effectively arguing that the imposition of one statute—the legislative purpose exception—makes it harder to follow a second statute—their air permitting responsibilities—and thus it is the court's responsibility to remove that burden.

The OAG disagreed, ruling that we are entitled, by state law, to the agency's records.  

It soon became clear what TCEQ was attempting to hide.  A few months after our request, billing records from ASARCO's law firm, Baker Botts LLP, became public in ASARCO's bankruptcy and showed repeated illegal ex parte communications between the firm and TCEQ staff and commissioners.  The ex parte communications occurred prior to and leading up to the ASARCO permitting decision in February.  In other words, ASARCO had an inside track to the commissioners without affording the same opportunity to the other parties to the contested permit. 

The ex parte communications at issue took place between an ASARCO lobbyist employed by Baker Botts and then-Chairman, Commissioner Buddy Garcia.  Garcia was hand-picked by Gov. Rick Perry to lead the agency despite having no prior environmental experience whatsoever.  During his confirmation hearing before the Senate Nominations Committee, I questioned Garcia regarding the troubling lack of faith El Paso and other areas of the state have in the agency.  In response, he promised to "get to the bottom" of issues that lead to "even a minute suggestion of criminal wrongdoing."  Clearly this standard was not followed and certainly not applied to Garcia himself.  After all, any evidence of illegal communications between Garcia and lobbyists would merely show the agency for what it is: corrupted and captured by state's polluters.   

As the open records request continued through the legal process, it has become more clear that TCEQ has no solid legal argument.  After the OAG ruled against the agency, TCEQ filed suit in Travis County, still arguing that the legislative purpose statute was unconstitutional.  The District Court also ruled against TCEQ and in our favor.  TCEQ appealed this decision, resulting in oral arguments that took place before the 3rd Court of Appeals just last week. 

TCEQ attempting to hide evidence of ex parte communications is standard operating procedure for an agency that values supporting polluters over protecting the public.    TCEQ's mission statement is "to protect our state's human and natural resources consistent with sustainable economic development. Our goal is clean air, clean water, and the safe management of waste."  But they have lost sight of those values.  By arguing executive privilege, the agency aims to conceal the network of influence and contacts that make money off of the ability to pollute.  The public's interest, however, has been piqued, resulting in calls to release the records and public outcry over the state's air permitting process. 

In addition to the ASARCO air permit, the WCS permit scandal raises serious concerns as to what's happening at the highest levels of TCEQ.  Discussed by our office recently, WCS is a hazardous waste disposal company that is burying trainloads of New York's toxic waste in the Texas panhandle.   

In 2005, WCS received a TCEQ permit to accept and bury poisonous sludge despite even TCEQ's own scientists expressing serious concerns that the site is too close to water aquifers and that waste stored at the site could potentially leak into groundwater.  After TCEQ executive director Glenn Shankle supported the issuance of the permit over staff recommendations, three TCEQ employees left the agency due to frustration with the licensing process.  WCS eventually did receive the permit and, as of January 26, 2010, had received 16 full trainloads of New York's toxic waste so far with a total weight of approximately 248,359,000 pounds.

After doing his part to ensure that WCS received their permit, Shankle left the agency in June 2008.  Only six months later, he signed on to lobby for the very polluter he was just regulating: WCS.  Apparently appearance of quid pro quo did not shy Shankle away from getting paid between $100,000 and $150,000 by the company, according to the Texas Ethics Commission.  When told of Shankle's new gig, one of the staffers who quit in protest of the WCS permit replied, "[e]ven the Mafia was more circumspect than this." 

Indeed, Shankle's departure to industry is not anything new.  Pam Giblin, the lead Baker Botts attorney working on the ASARCO air permit, is another former TCEQ employee who left the agency to work for polluters.  Representing oil, chemical, and power industries, she is now happy to bill $675 an hour to fight against Texas' air, water, and soil.  Giblin and other Baker Botts attorneys were also happy to help host a reception for the newest TCEQ commissioner, Bryan Shaw.  I questioned Shaw about this very event during his Senate confirmation hearing.    

As former U.S. Supreme Court Justice Louis Brandeis stated, "sunlight is the best disinfectant."  Until these and other backroom deals and revolving-door practices are discussed openly, reported on by the press, and investigated by national and state committees with oversight on clean air and water, Texas' environmental agency will continue to value polluters' pocketbooks over the public interest. 

Help connect the dots—then tell Austin that our skies are not for sale.  


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