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The Ungreening of America: No Clear Skies

In a Texas oil town, the assault on the nation's clean-air laws has hit close to home.

As we head away from the Westside, Kelley says it's not just pollution his organization is trying to combat; part of the group's goal is simply "to bring back a little hope to people here. I'm trying to get them to quit feeling so beat down, trying to remind them they've got to vote and protest things -- otherwise, they'll just get run over." He talks about the Juneteenth Festival the group is co-sponsoring, with a musical and civic program on a plywood stage Kelley built himself, plus dunking booths, an inflatable Moonwalk, and horseback rides. And he talks about a lawsuit local residents are bringing in Texas state court -- a massive "toxic tort" case against three refineries and three petrochemical plants. Five hundred people have signed on as plaintiffs in the case, Filed on June 25, claiming that plant emissions have damaged their health.

Spokespeople for the plants declined to comment on the specifics of the case. But several of them point out that there is no conclusive evidence linking refinery emissions to health problems among Port Arthur residents, and that a number of plants have installed cleaner equipment in the past 10 years. Industry representatives and civic leaders have formed a group to start an air-monitoring system and to donate money to community programs; industry officials have told the group that routine plant emissions have declined 50 percent since the mid-1990s and should drop another 25 percent over the next few years. "We are going to clean up the air," says Rick Hagar, spokesman for Atofina Petrochemicals. "We all live near a plant here." His own children, he notes, have been diagnosed with asthma; doctors initially suggested that plant emissions could be responsible, but then concluded that mold and mildew were the likely cause.

No one has ever conducted a comprehensive survey of what's in Port Arthur's air, or what it might be doing to people's health. But a smattering of studies and government data suggests some troublesome patterns. In 1998, the Texas Department of Public Health found that the Westside had levels of ozone, hydrogen sulfide, and benzene (a known carcinogen) that constituted a "public health concern," and that there was a "plausible relationship" between releases of those substances and health problems in the neighborhood.

Two years later, the EPA dispatched a Louisiana chemist named Wilma Subra to Port Arthur. Subra, who has won a MacArthur genius grant for her work on pollution in "fenceline" communities, asked Westside residents to fill out logs when they smelled a strange odor or experienced specific health problems. The symptoms people reported having -- everything from headaches and sore throats to cough, nausea, diarrhea, and difficulty breathing -- matched up exactly with the known effects of chemicals released by refinery "upsets," according to Subra. Residents also reported air that smelled like "something dead," "acid," "chlorine," "ammonia," "oil-spill-like odor," and "paint odor, very strong."

In another study, in 2000, University of Texas toxicology professor Marvin Legator surveyed people living in public housing in Port Arthur and compared their health with a control group in Galveston, some 60 miles away. More than three-quarters of the Port Arthur residents had respiratory illnesses, compared with less than 10 percent in Galveston. More than half had immune-system problems, compared with just under 12 percent in the control group, and over 80 percent reported ear, nose, and throat irritation, compared with less than 25 percent in Galveston. "This is a pretty bad place," says Legator. "Certainly it's one that I wouldn't want to live in."

Reverend Alfred Dominic started complaining about refinery pollution in high school in the 1930s; later, he launched a campaign to clean up Port Arthur's air.


FUNDAMENTALLY, the argument over the Clean Air Act rules is a fight about dinosaurs -- plants that are no longer supposed to exist. Back when Congress passed the current standards, in 1977, lawmakers faced a choice between forcing every industrial plant in the country to clean up immediately or spreading the change out over time. They opted for a process called New Source Review, under which companies had to install state-of-the-art pollution equipment when they expanded their plants -- something that was expected to happen within a decade or two. "It would never have occurred to anybody," says Curtis Moore, who was counsel to the Senate Environment Committee in the 1980s, "that some of those plants would still be in existence."

As it happened, however, companies increasingly opted to evade the cleanup mandate by keeping their old plants going, rarely notifying the EPA even when they undertook major expansions. "Industry proved much more clever and creative at exploiting the loopholes" than Congress expected, says Donald Kettl, a political scientist who chaired a recent review of Clean Air Act rules by the National Academy of Public Administration.

Under pressure from both industry and environmentalists, the Clinton administration began to draw up changes to the Clean Air Act standards, especially to New Source Review. But the process took a much more aggressive turn under Bush, according to Bill Becker, who heads a national association of air-quality officials. The new administration was aiming not just to change the New Source Review requirements, he says, but to lift them entirely for many plants. "Someone in the administration got very greedy," he says, "and put things in there that the industry had not even wanted."

Why did the administration opt for such a sweeping revision? Part of the answer may lie with Vice President Dick Cheney's energy task force, which for much of 2001 met in secret to draw up a plan for expanding the nation's energy output. Representatives from power companies and refineries, the industries most affected by New Source Review, made contact with the task force dozens of times. A private memo to the task force from one of the nation's largest electricity producers, Southern Company -- which contributed a total of $2.4 million to Republican candidates and the GOP between 1999 and 2002 -- warned that the EPA's "extreme" use of New Source Review "threatens the safe, reliable, and efficient operation of energy production facilities across the country." Industry leaders also hired former Republican National Committee chairman Haley Barbour and RNC chairman-to-be Marc Racicot to plead their case before the Cheney panel. In May 2001, the group issued a report recommending that the EPA review "the impact of [clean air rules] on investment" in utility and refinery expansion.

Nineteen months later, then-EPA administrator Christine Whitman released the New Source Review rules, characterizing the changes as a way to encourage plants to modernize and improve air quality. But according to some of the EPA's own calculations, the effect could well be the opposite. Under the new rules, for example, plants can use their two worst-polluting years of the past decade as a baseline for future emissions -- an approach that, critics note, effectively rewards the dirtiest plants. According to one EPA memo, that change alone would allow 50 percent of all the nation's industrial plants to expand without being forced to clean up. The rules, notes Becker of the air-quality officials' group, also create a major new loophole for plants that release toxic chemicals during "upsets" such as the one at Port Arthur's Motiva. "If you are an attorney for industry and you can't Find ways to escape New Source Review," he says, "shame on you."

The rule changes had an immediate, and drastic, effect on another Clinton-era EPA effort -- a push to crack down on companies that had been operating in violation of the law for decades. In the late '90s, then-EPA civil enforcement chief Eric Schaeffer launched enforcement actions against more than 150 companies for suspected New Source Review violations. Among the targets were dozens of refineries and petrochemical companies, including at least two in Port Arthur, as well as 51 of the nation's dirtiest power plants -- a collection of mostly Midwestern facilities that together are considered responsible for air pollution that kills as many as 9,000 people a year. The agency's goal was to push the companies to negotiate settlements in which they would agree to reduce emissions and spend millions on community programs.

But the talks grew distinctly chillier, Schaeffer recalls, after January 2001. "When the Bush administration came in," he says, "they basically said to these polluters, 'Don't worry, boys, we're going to change the way we enforce requirements.' And if you're negotiating the law and, literally, they're right behind you rolling the law up and putting it away, what kind of leverage did I have?" Schaeffer quit his post last year, complaining that the White House was "determined to undermine the rules we are trying to enforce." The Bush administration has signed settlements in 17 of the cases he brought; negotiations in several others have stalled. The EPA has Filed no new complaints for New Source Review violations since Bush took office.

Before he left, Schaeffer managed to hammer out a cleanup agreement with Motiva, one of the Port Arthur plants his agency had targeted. The company promised to install new pollution-control equipment, start an aggressive self-auditing program, and pay Fines for future emissions violations. EPA officials say negotiations with other companies are continuing, but have not produced any settlements. One of the Port Arthur refineries, Premcor, announced plans for a massive expansion this spring.

Lillie Tilley, for one, has given up on waiting for Washington to force the Port Arthur plants to clean up. One of her sons works for a refinery -- "It's a livelihood," she says -- but when her daughter graduates from high school next year, Tilley hopes the girl will move to Seattle, where she has relatives. She remembers visiting the Northwest once and being struck by the tall trees and the mountains. Most of all, she remembers the air. "You could breathe," she says. "You could take a deep breath and enjoy."

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