Buffalo Bill

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."

Miksa and the other probill lobbyists say Texas is at a competitive disadvantage because of the threat of contested case hearings. But Texas is consistently rated as one of the most business-friendly states in the country. And the number of applications that actually go to a hearing would seem to make the threat rather empty; according to TNRCC's own records, only 49 permits reached the hearing stage the last two fiscal years, out of thousands issued by the agency.

The lobbyists -- and Uher -- have also stated that Texas is the only state with this kind of process. But a number of states have similar judicial proceedings. "That's a lie," says Mary Kelly, who heads the Texas Center for Policy Studies.

Further dampening the argument is the state code, which says clearly that TNRCC already has broad authority to deny hearings it deems frivolous: "The Commission is not required to hold a hearing if the Commission determines that the basis of the person's request for a hearing as an affected person is not reasonable or is not supported by competent evidence."

While boosters seem to be hinging the need for radical reform on the flimsiest of footing, opponents of the bill have a series of pithy cases to bolster their point. At the legislative hearing, an attorney representing the cities of Del Rio and Bracketville argued that the process works well as it is. They noted that during three contested hearings on landfills, the cities uncovered examples of critical, damning evidence that the applicants had failed to provide TNRCC.

To halt a municipal solid waste landfill in Fort Bend County, several agencies joined forces and contested the case. Underneath the site, it turned out, lay a fault -- not indicated in the applicant's materials -- that cast doubt on the stability of the site. "If we had not had the contested case hearing process, we probably would not have been able to stop that landfill," says Carol Lenz, an aide to Steve Radack familiar with the project.

Harris County also used a contested case hearing to kill a hazardous waste storage and treatment facility near Dayton. In both cases, TNRCC staff had recommended approval of the permits despite vigorous public protest.

Uher's bill proposes to replace contested case hearings with expanded opportunity for public comment, but as the Fort Bend and Harris cases show, comment is easily ignored. "It's a good example of why comments fail," says Cathy Sisk. "We commented until we were blue in the face."

Vaporous arguments or not, the industry side must be admired at least for its persistence. This is the third go-round for the bill, which stalled in committee during the 1995 and 1997 sessions. Perhaps thinking no one would notice if the bill slid quickly through, proponents managed to land it on the environmental committee's agenda the first day the group convened, an unusual move.

But if stealth was the objective, it didn't work, and the resulting uproar has even the bill's sponsors backpedaling. Claiming he signed on to the bill to make sure it ultimately protected the public, Representative Culberson says he'll be doing more than a little tweaking. "The bill when it leaves the House will look dramatically different from the bill when it was filed," Culberson says.

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