Smoke and Mirrors

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

Officials at the TNRCC, the agency that administers the vast majority of self-audits, applaud the Audit Privilege Act because it defrays their inspection burden.

"Given the limited resources the state has for doing inspections, certainly the audit program is a complement to ensure compliance with the law," says Toni Toliver, the TNRCC's audit coordinator.

This notion of a partnership between the agency and the entities it is supposed to be regulating is not without problems, critics charge. The agency clearly shares Golemon's sense of trust. Toliver says that the TNRCC almost always accepts a company's word that it has corrected a violation, without independently verifying the result.

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 TNRCC can check up on companies during future inspections, she says, adding that the immunity is conditional and can be stripped if the agency learns that a problem persists. But Toliver is unaware of any instances where the agency has stripped immunity for failure to achieve "appropriate" corrective action.

"In the time that I've been here, I'm not familiar that we've gone back and denied immunity for noncorrection of a violation," she says.

The audit act also states that a regulated entity cannot get immunity if its violation resulted "in injury or substantial risk to one or more persons." But Toliver says that the agency has never determined that a self-reported violation by a company rose to that level of harm.

To Lowerre, the Austin attorney, that can mean one of two things: Either the companies don't have serious violations, or they're not disclosing them.

"It's my position they're not reporting them," he says. Lowerre has many criticisms for how the TNRCC handles the audit program. Among the most serious is his contention that the agency has done virtually nothing to gauge the program's overall impact on health and the environment.

Indeed, agency officials have little to show to bolster their optimism about the program. The only thing the TNRCC can say for sure is the number of self-audits and instances in which companies have received immunity for breaking environmental laws. At the end of August the totals were 1,208 audits, 345 of which disclosed one or more violations.

But how the law has impacted the public is anybody's guess. Paul Sarahan, the director of TNRCC's litigation division, admitted as much in a July 12 letter to Lowerre.

"Currently, the TNRCC does not specifically track the impact of the audit act on general compliance in Texas or on the levels of pollution in Texas," he wrote. Still, he defended the program.

"Generally the violations disclosed and corrected by regulated entities through the audit program are violations that had not yet been noted by inspectors or the entities, and thus, the program leads to expedited compliance," he wrote.

The TNRCC has a history of going to bat for the audit privilege law.

In 1997 the Environmental Defense Fund and the Oil, Chemical and Atomic Workers Union filed a petition with the Environmental Protection Agency to withdraw Texas's authority over programs under the federal Safe Drinking Water Act.

That petition and the EPA's own historic aversion to audit privileges prompted the agency to pressure Texas to amend its law or lose enforcement authority over federal statutes. The TNRCC mounted a vigorous counteroffensive. In scathing testimony before the U.S. Senate, then-TNRCC chairman Barry McBee -- a Bush appointee -- blasted the EPA for being "a persistent antagonist" to state regulators.

Nevertheless, Texas reached détente with the feds when lawmakers amended the audit act in 1997, eliminating, among other things, its application of privilege and immunity to criminal actions.

Golemon insists that nobody can point to any cases of problems or abuse associated with the law. "It's five years later; they can't point to a single problem," he says.

Lowerre disagrees. Perhaps nobody can produce "a dead body," as a result of the law. But who knows? Embedded in the audit privilege statute is a kind of vicious circularity, he says. How can you prove harm if you can't obtain the information that might document it?

"If you make information privileged, you can't show truth," he says.

That was a primary lesson learned by Maschino and her Clean Air Clear Lake, in their campaign against the American Acryl permits for the plant. While they got many documents, the company used the Audit Privilege Act and a forest of other legal barricades to impede the flow of facts about the plant proposal.

Now, the new plant's foundation begins to take shape on flattened acreage, illuminated by the flare of a nearby tank farm licking the night sky like a toxic Olympic flame. American Acryl's permits were approved in May by TNRCC commissioners. And the citizens of Clean Air Clear Lake can only speculate about what might have been in the undisclosed documents.

"This company has been very secretive," Maschino says. "They really don't want us to know."

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