Buffalo Bill

Legislation would cut citizens out of the process

The Enhanced Public Participation Coalition wants to make life better for the average Texan. This collection of industry trade groups that includes the Texas Chemical Council and the Greater Houston Partnership has proposed a bit of legislation that will reflect the beneficence of its name: the Enhanced Public Participation Process bill.

The coalition says the system is broke, that an overhaul is necessary to protect the public and, of course, themselves from further damage. Abuse is rampant, they claim; corporations are being held hostage by blackmailers and extortionists. As companies flee the state, the Texas economy is suffering untold damage. "The business community is losing patience with the costs and unpredictability of the present system," warns a brief prepared by industry lobbyist Paul Seals, a lawyer with Akin Gump.

Seals is referring to the way the Texas Natural Resource Conservation Commission handles environmental permit applications for landfills, chemical plants, cement kilns and other polluting facilities. In particular, industry wants to strip the public of the right to mount legal challenges against new plants or plant expansions.

To that end, Seals and a couple of his fellow lobbyists authored a bill that would eliminate contested case hearings, which are legal proceedings before an administrative law judge. Supporters such as the Texas Chemical Council say the bill would streamline the process and actually benefit the public by creating new opportunities for input.

The idea that those pushing the bill have the best interest of the citizenry at heart has drawn howls of scorn and protest from communities across Texas, many of which sent representatives to a February 15 hearing before the House Environmental Regulation Committee. "This is nothing more than enhanced polluter power," says Phyllis Glazer, an East Texas rancher who spent more than $1 million to block expansion of a hazardous waste disposal plant in Winona. "We're not suckers. We know what's going on."

The Harris County Attorney's office, County Commissioner Steve Radack and other local officials expressed equal skepticism, if somewhat more delicately. "The 'enhanced public participation process' bill will do no such thing," wrote assistant county attorney Cathy Sisk in a summary of the proposed law. "In fact, it will eliminate the public's most useful tool in protecting public health and the environment."

At least a few people are buying the Chemical Council's line: Representative Tom Uher of Bay City sponsored the bill, the first filed for the new legislative session, and Representative John Culberson of Houston jumped aboard as co-sponsor. Representative Robert Talton of Pasadena, an environmental committee member, gave an indication of his position by attacking citizens who spoke against the bill.

Evidence is a bit thin to back the contention that the system is out of control and that citizens abuse the process by filing frivolous requests for contested case hearings. Asked to provide examples of abused companies, the lobbyists and legislators repeating the claim come up with exactly two: one from 1994, the other from 1995. There are dozens of others, they insist, but the companies involved can't or don't wish to go public. "Believe me, I would like nothing better than to have a whole list of companies and phone numbers, but I don't have that," says Mary Miksa, a lobbyist with the Texas Association of Business and Chambers of Commerce and one of the bill's architects.

The shortage of victims doesn't bother Uher, who knows they must exist. "I think the abuses are there," he says. "It's just the nature of the animal."

Forces supporting the bill do have one poster child: Texas Eastman, a petrochemical company in Longview that wanted a "minor, straightforward, environmentally friendly" modification to its hazardous waste permit, as Miksa wrote in a summary of the case.

But a neighboring landowner got a hearing, made a series of unsubstantiated allegations about ground water contamination and cost the company more than $200,000 in legal fees. Exasperated, the company finally withdrew its permit application. It didn't cause a problem, Miksa wrote, because "not obtaining the modification did not interfere with vital operations." Nevertheless, Miksa concluded, "The concern is that unless changes in the contested case hearing process are made, similar abuses to the process on applications for important new construction permits, or vital permit modifications, will be jeopardized."

Environmental attorney Rick Lowery finds the use of Texas Eastman as the prized example more than amusing. Lowery, who represented the landowner in his legal battle against the company, says that concerns about the ground water had more than a solid footing. When Texas Eastman built the first phase of its landfill, company documents showed the water table running under the landowner's property. When they came in with the modification request, Lowery says, Eastman had decided that the water ran in the other direction. "We had 'em dead on the ground water issue," he says.

What's more, Eastman didn't simply withdraw the permit request and go home. With the help of TNRCC, the company worked out a way to bypass the contested case hearing, leaving the landowner without recourse. "Talk about abuse," Lowery snorts. "They withdraw, and then the agency and Texas Eastman collude to get the company what it wants."

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