Smoke and Mirrors

As part of the Bush legacy, a special law can hide polluting industries

Tamara Maschino did not know everything about her prospective neighbor's past. What she did know scared her.

The chemical giant Elf Atochem was seeking permits for a new acrylic acid plant less than a mile from her Seabrook home. This was the same company that paid an estimated $100 million settlement to the families of eight children who died from birth defects in Bryan. Elf left a trail of lawsuits, fines and toxic incidents at other facilities, including a 1994 sulfuric acid release at its Crosby plant that sent four people to the hospital.

Maschino wanted to avoid similar trouble. Her neighborhood of well-appointed brick houses already sat uneasily amid a throng of polluting factories in the petrochemical heart of America.

Tamara Maschino made her discovery of the audit law's effects while fighting a plant permit.
Tamara Maschino made her discovery of the audit law's effects while fighting a plant permit.
Clear Air Clear Lake members (from left: Lucille Griffith, Arlene Polewarczyk, Tamara Maschino and Ruth Lang) are appealing the American Acryl plant permit.
Deron Neblett
Clear Air Clear Lake members (from left: Lucille Griffith, Arlene Polewarczyk, Tamara Maschino and Ruth Lang) are appealing the American Acryl plant permit.

The proposed $150 million facility, called American Acryl, was projected to spew more than 800,000 pounds of pollutants each year. Maschino and the community group she co-founded, Clean Air Clear Lake, petitioned the Texas Natural Resource Conservation Commission to deny the permits.

They made an extensive document request to get the hard facts about Elf Atochem's pollution history, as well as the risks posed by the new plant.

The company responded with a lengthy set of objections, and select documents were withheld. Maschino and her group felt they were getting only part of the story. But the process was educational nonetheless. Maschino's group relied on state statutes in its search for information. But the quest brought them face-to-face with an obscure state law employed by Elf Atochem to block part of that pursuit. Maschino discovered that the statute -- under the lofty title of Texas Environmental, Health, and Safety Audit Privilege Act -- puts the citizens' right to know about industrial hazards far beneath another priority: protecting the secrecy of polluters.

"It's not fair that this information be withheld from the average citizen," she says. "We have a right to know what is happening near our homes."

The Audit Privilege Act essentially gives companies carte blanche to inspect operations and keep what they find from ever seeing the light of day. In most cases, a company that uncovers a violation and reports it to the state gains immunity from penalties. If the company decides not to report the violation, nobody on the outside will be the wiser.

Before the law, inspectors and courts could request pertinent documents they needed to gauge a company's performance, without facing such broad barriers. The state also had the authority to mete out punishments that fit self-reported pollution offenses.

Business leaders overwhelmingly support the measure, saying it spurs them to voluntarily locate and fix problems. George W. Bush put his pen to it in 1995, making it one of the first bills he signed as governor.

Critics pan it as a "polluter immunity" law, one that has "everything to do with hiding information from the public that could be injurious," in the words of Rick Lowerre, an Austin attorney.

Under the best scenario, the industry will use the law responsibly, seek out hazards and report them. Companies that do so will not be fined if they agree to correct the problem "within a reasonable period of time."

But there is ample room for cheating. A company may strongly suspect a violation prior to conducting the audit and go through the exercise simply to "find" the problem and avoid paying penalties. Or it may choose not to report a violation at all. In that case, the firm takes a chance that state investigators might discover the problem during a routine inspection. Yet that's a small price to pay for the cache of information they can glean that the state or a court almost never can obtain.

The audit act provides that information found in a voluntary inspection is privileged against disclosure and inadmissible as evidence in a civil or administrative hearing. In most cases, that means lab analyses, notes, interviews, photographs, maps, charts and surveys remain confidential, making the provision far more sweeping than other protections like attorney-client privilege.

The law changes the very notion of what constitutes fact, Lowerre says, and that undermines a free and open society.

"The game in courts isn't who can best hide information. It's "Let's find the truth,' " he says.

"Audit privilege is totally contrary to that."

Lowerre represented a citizens' group near Amarillo that sought to block a permit for an expansion to a Browning-Ferris Inc. landfill. The dispute revolved around contaminated groundwater, which the TNRCC had determined posed a potential health risk.

BFI performed two detailed inspections after the contamination was discovered. During the administrative hearings, Lowerre's clients sought access to the reports, but the company claimed they could be kept secret under the audit act. BFI had never notified the TNRCC of its intent to conduct an audit, but it didn't have to, argued company lawyer Elizabeth Hurst.

"The very purpose of the Texas Audit Privilege Act is to establish this liberal and broad privilege rule as an incentive to businesses to conduct their own audits and freely report violations," she wrote in a court brief. "There is no evidence in the statute to support the claim that prior notice is required for privilege."

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