By Chris Lane
By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
After almost 20 years and $1.5 million in legal fees, Mickey Reynolds thought there was victory. The Wharton County commissioner had been among the hundreds of residents fighting a proposal to store hazardous petrochemical waste in the Boling salt dome beneath their land.
Houston attorney Michael Shelton and his company, Secured Environmental Management Inc., had waged the latest and lengthy campaign for state approval of a plan that could pump as much as 2.2 million tons of the waste into underground formations.
However, residents appealed to the Texas legislature, where a bill was passed last May to ban use of the dome as a Dumpster (see "Unstable Ground," by Lauren Kern, June 21).
As it turns out, the victory celebration lasted only about a month.
"This is a picture of what hell would be like," Reynolds says. "Where you have to keep going back and saying, 'Please don't do this. Please.' And they do it anyway."
After House Bill 2912 prohibited dumping hazardous waste in solution-mined salt domes, Shelton met with Jeffrey Saitas, executive director of the Texas Natural Resource Conservation Commission. Shelton's lawyers wanted his permit application to be kept alive, arguing that the legislation was unconstitutional, says Woodie Jones, Shelton's attorney in Austin.
Saitas wrote Shelton on July 26, pointing out that the permit could not be granted because of the new law. Six days later, Shelton sued both the TNRCC and Saitas.
Shelton's attorney argues that the federal 1976 Resource Conservation and Recovery Act takes precedent over last year's state law. The federal act says that with the appropriate permit, it's okay to store hazardous waste in domes, Jones says.
"The state law basically said no, you can't -- irrespective of whether you could get a permit or not," Jones says.
But the fact remains that a permit has never been issued for disposal of solid hazardous waste in salt domes.
"You can pull examples of law from anything, but their cases have no relevance," says Wharton County farmer Winston Stein. "There's never been a well permitted of this type. So therefore it's really close, but not the same."
Travis County District Judge Paul Davis denied the company's motion for summary judgment. A hearing for a temporary injunction is set for September 3. "The facts are undisputed," Jones contends. "Based on the facts, we win."
Reynolds and other opponents say the legal thrust is just another ploy by Shelton. "Obviously, they're looking and have found loophole after loophole after loophole and have cost the county dollars after dollars after dollars," Reynolds says. "Anytime you can pay lawyers, you can find something else."
While the TNRCC is being sued by the company, the anti-disposal forces also complain that the agency is more interested in granting permits than protecting citizens. That criticism came when the executive director's letter to Shelton mentioned that the company may want to modify its application to seek a permit to put nonhazardous waste in the dome.
"They don't need to be advising our opponent on steps to take to eventually do whatever they wanted to do," says Reynolds.
TNRCC spokesperson Jean Pieper Voshell says the agency does not have a policy of suggesting permit modifications. "When laws and rules change, we help a company to make sure they're applying for the right permit We were simply letting them know what the rules were."
Opponents fear that the dome is unstable and the wastes could contaminate water supplies. "I don't want any liquid in my water besides water," says farmer Gerald Donaldson.
"Nonhazardous waste could be stuff like arsenic, which is very deadly," says Stein. "Just because it's not classified as hazardous does not mean it will not kill you."
Jones, the company attorney, scoffs at the claims. "In order to get a permit from TNRCC, you've got to show that it is safe for like 15,000 years," he says. "And so our position is that it's completely safe."
Reynolds argues that once a nonhazardous waste permit is issued, it will be easier for Shelton to obtain a hazardous waste permit, and then possibly a toxic waste permit. Or that the company cannot be trusted to limit disposals to approved wastes.
Residents say they're willing to increase taxes to fund the continued fight. Concerned Citizens Against Pollution upped membership dues from $5 to $10. They restructured the organization, creating committees and liaisons to the TNRCC, the legislature and the Lower Colorado River Authority.
Stein, president of CCAP, voiced disgust at what he said was the agency staff's assurances that there were no threats. "They're so convinced that their construction is so solid that they're convinced that nothing will ever happen. And this is just a blind fallacy."
The citizens' group has been meeting weekly in preparation for a May 8 session with state officials in Austin.
"We knew when they turned the permit down, he wasn't gonna stop," Reynolds says. "That's just the way they work. They just keep on pounding us and pounding us."