He hates the gas station. That is the first thing that must be understood. It is not merely a nuisance, or a minor annoyance. To use those words would be to smooth over the raging injustice that has infected every day of David Rosenfield's life for the past 14 years, ever since he bought the modest three-bedroom, two-bath house on Dunlap Street. Ever since his life became a homeowner's hell.
The one-story house in southwest Houston sits just feet away from a Shell gas station. The gas station is a large white modern structure with eight pumps, a convenience store, a mechanic's shop and a car wash. Shell has assigned bright signs in red, yellow and blue to each of these pieces: Food Mart, Car Wash, Service Center.
If Playskool made a gas station, it would look like this Shell.
But do not be fooled. Because as innocuous as it appears, it is this gas station, this building, this thing, that has turned 44-year-old David Rosenfield into a Job of modern times.
At least, this is how he tells it.
And oh, how he tells it, storming around his yard, barking a timeline of unjust acts against him that began almost as soon as he moved into the house in 1989. By his conservative estimate, Rosenfield has spent about $30,000 of his own money and 1,000 hours of his time to hire lawyers, engineers, high-tech drilling equipment and an environmental consulting firm to document the onslaught of environmental violations against his homestead. Claiming his property is now worthless, he's filed a lawsuit against Shell and its affiliates, as well as the franchisee of the station, asking for around $600,000 so he can get the hell out of this place.
And what are the abuses he has endured? Rosenfield is more than ready to describe them -- often, at length and in aching detail. The gas station's car wash, built in 1998, is so loud it violates city noise ordinances, and it keeps him and his 23-year-old El Salvadoran wife, Sonia, from sleeping in their master bedroom at night. Shell has allowed wasted detergent from the car wash to swim out of the gas station and into his gutters. During the flood of 1992, when the banks of a nearby bayou overflowed, the rushing waters carried gallons of used engine oil away from the gas station until they spilled all over Rosenfield's lawn. According to Rosenfield, the gas station employees had not properly secured the lids of the used oil drums.
"They were gas station monkeys," he spits. "We call 'em grease monkeys."
But it is the latest, most serious blow that has Rosenfield more upset than ever. When a close friend who had once worked with leaking underground storage tanks suggested that Rosenfield might want to test for contamination of his groundwater and soil, Rosenfield agreed and quickly had seven small trees and some bushes in his backyard chopped down so that a consulting firm could drill his land. When an initial sampling of his property revealed high levels of such contaminants as benzene, Rosenfield decided to gain publicity for his cause by calling a press conference for local television and newspaper reporters -- complete with McDonald's hamburgers.
Mediation finally has been set for the end of this month. But Rosenfield doesn't think he'll get the money he's asking for. He won't be surprised if he has to go to trial, he says. But it's easy to think that a trial is the only place a fight like this belongs. Mediation would almost be too easy, too simple. If Rosenfield is indeed fighting a war, as he describes it, there should be a final battle, not a quiet surrender.
As Rosenfield relates his story while standing on his front lawn, an automobile lumbers through the car wash just steps away. As the hissing, grating noises begin to build, Rosenfield cringes and utters, "Oh, my God." He looks to his left, in the direction of the enemy.
"One thing I want to stress is that Shell wants you to think they're ecologically and environmentally friendly," he says. "They plant pansies, flowers. But these bastards -- excuse my language -- have been polluting me since I bought this house."
Rosenfield is leaning over the ground in his backyard, handling clumps of dried earth. They are pieces of core samples from the recent drilling performed by Bandy & Associates, the firm he hired to check his ground for contamination.
"Do you smell the gasoline?" he yelps, thrusting a piece of the sample under the nose of a visitor. The scent is faint, but definitely there.
Rosenfield, who enjoys using his loud, gravelly voice, is "a fourth-generation Houstonian, and proud of it." The descendant of Ukrainian immigrants who came to Houston through Galveston, he runs his own business buying and selling vintage motorcycles and cars. In what was perhaps an optimistic move, he named his dog Lucky. He met his wife five years ago while traveling in El Salvador. They've been married for about a year.
"She doesn't understand the laws in this country," he says. "She thinks if you sue someone they come and kill you."
Rosenfield surveys his dug-up backyard, which backs up to Hillcroft Avenue. Since the trees were removed so Bandy & Associates could study the ground, the traffic heading down the busy street is louder than ever.
"My backyard was all trees," he says. "There's no way I can smooth it out again."
He and Sonia say they used to barbecue, bird-watch, garden and throw parties. Now they can't do any of those things. Sonia can't even come out and spray water into the trees for the birds that used to flock nearby.
"There's a pigeon," he points out, almost mournfully, as a sole bird flies by.
After saving up for several years, Rosenfield bought the house for $106,000 at foreclosure on the courthouse steps. The idea of having the Shell station, built in 1964, as a neighbor didn't bother him.
"I expected that I bought a house in a deed-restricted subdivision governed by the county, the city and the country," he says. "I live in a residential house, not a refinery."
Rosenfield says Shell, its affiliate Equiva and its subsidiary Motiva are eager to portray him as a complainer. In a sense, they're right. Rosenfield's office is cluttered with thick stacks of letters full of gripes that he has sent to the City of Houston, to station franchisee Theo Papavasiliou, to Shell and to the state's environmental regulatory agency, the Texas Natural Resource Conservation Commission. But even though Rosenfield angrily rejects the "complainer" label, it could easily be argued that it's usually the complainers like Rosenfield who manage to get through the bureaucratic muck of government and big business.
"He is -- and I'm looking for the right word here -- he is persistent," says Robert Stahl, retired environmental investigator for the city's Bureau of Air Quality. "I got more phone calls from him than the average complainant." Stahl was assigned to deal with the fine mist that shoots into Rosenfield's yard each time Shell's car wash is activated.
"He'd call when it was fired up," remembers Stahl. "He kept records, he shot video." Although Rosenfield and his wife still insist the wax, degreaser and shampoo found in the mist burns their eyes and mouths, an investigation by the bureau determined the car wash spray a nuisance, not a health hazard. But even so, Stahl speaks about Rosenfield with a touch of awe.
"I knew he was persistent, but I didn't know how persistent until I saw him on television," he says. "He's grabbed on to this issue, and he's not going to let go."
Shell made an effort to resolve some of Rosenfield's initial complaints. About a year after he hired the emergency response company Boots & Coots to prove that the car wash did indeed violate city noise ordinances, Shell put up a 12-foot wooden privacy fence. (Rosenfield likes to note that "they put the pretty side of the fence on their side" and that it doesn't do much good at all.) And after the 1992 flood that spilled used engine oil on his lawn, Shell offered to remove and replace his topsoil, a concession Rosenfield thought wasn't good enough to accept.
But while the noise violations, car wash mist and a onetime small spill could be classified as minor concerns, it is the discovery of serious contamination that has gotten the TNRCC involved, and it is this contamination that is at the heart of Rosenfield's worries -- who knows what kind of health risks he and Sonia are being exposed to?
"I don't want to live in a toxic waste dump," he says.
The contamination was first discovered in May, when Bandy & Associates used a small drilling rig called a Geo Probe to make several small holes about 20 feet deep in Rosenfield's lawn. According to S.S. Bandy, an environmental engineer and president of the consulting company, the firm was looking for high levels of BTEX and TPH. TPH, which stands for total petroleum hydrocarbons, is a measure of the sum total of all the hydrocarbons in certain kinds of gasoline. BTEX stands for benzene, toluene, ethylbenzene and xylene, certain hydrocarbons that are natural components of petroleum. Benzene, an organic compound, is a known carcinogen.
According to Bandy, who has been doing this type of work for about 25 years, "the subsurface soil [of Rosenfield's property] has been contaminated quite heavily. And the levels are very high on the side adjacent to the gas station. There is a big problem."
For example, an acceptable level of benzene in soil is no more than 0.005 parts per million, says Bandy. The benzene levels in Rosenfield's soil were at 0.360 parts per million. The benzene levels in his groundwater were also higher than acceptable. (Rosenfield's drinking supply comes from the city, not the groundwater.)
After the initial studies proved contamination, Rosenfield had to pay to get his trees cut down so a large drilling rig could be brought in to install four monitor wells at the four corners of his property. The second round of tests, performed last month, also revealed contamination.
After the Geo Probe tests, Rosenfield contacted TNRCC offices in Austin to report the findings. Phyllis Cunningham, a team leader in the agency's remediation division, began the slow process of getting Shell, Motiva and Equiva to draw up a plan of action in response to the reports of contamination. Unfortunately, says Cunningham, initial letters sent out in October 2001 ended up with the wrong contact at Motiva, so the response was delayed. After the letter reached the right person, Cunningham says, Motiva finally contacted the TNRCC in early December, sending along current records of integrity tests performed on the three 12,000-gallon underground tanks at the Shell station.
"The response was 'We're sending tightness-testing results, everything's fine, we don't feel we need to do anything else,' " says Cunningham (tightness testing is a kind of integrity test performed on a tank to see if it's leaking). But Cunningham insisted that subsurface exploration take place -- much like the testing Rosenfield had performed on his own property. Again, Motiva dawdled in reporting back to the TNRCC, but as of press time drilling had finally begun and monitor wells had been installed at the gas station.
Attorneys for Shell, Motiva, Equiva and station franchisee Papavasiliou all declined to comment for this story, citing pending litigation. Through a spokesperson, Motiva -- speaking on behalf of Shell and Equiva -- released a statement claiming, "there is no credible evidence to support Mr. Rosenfield's claims of contamination from our station."
Motiva does admit that in October 1988 five steel underground tanks were removed so they could be replaced with the current fiberglass tanks and, at that time, "residual hydrocarbons were discovered." But according to Motiva and the TNRCC, the cleanup was approved by the Texas Water Commission (the TNRCC's predecessor) and the case was closed. Motiva also claims that daily integrity tests are performed on the tanks and that there has been no evidence of leakage since the current tanks were installed in 1988. Their tanks are solid, says Motiva, and Rosenfield shouldn't have a thing to worry about.
According to the TNRCC's records, high levels of TPH were detected in soil surrounding one of the tanks in 1988, but the state regulators decided TPH and BTEX levels in remaining soil samples were acceptable. The contaminated soil was removed and hauled to a landfill.
The report supposedly claims groundwater was not affected. But could the current contamination of Rosenfield's yard be caused by leaks from the older steel tanks? According to Hanadi Rifai, a professor in the University of Houston's Civil and Environmental Engineering Program, it is a possibility.
"Back in those days, you would just dig [around the tank] until you got to clean soil," says Rifai, who specializes in hazardous waste and groundwater contaminant transport. "It's hard to speculate, but my experience has been that a lot of gas stations that had leaks ten, 20 years ago will still have footsteps of that leakage."
However, Rifai says, it's important to keep in mind that the 1988 report indicates there was spillage. "But that doesn't mean the newer tanks didn't leak."
Whether they polluted then or they polluted now, Rosenfield's attorney Gary Roth believes Motiva's position on the situation is laughable.
"I don't think there is any question the contamination has something to do with the gas station," he says. "But they've denied any responsibility."
Rosenfield puts it more succinctly.
"They're total assholes," he says. "Excuse my French."
The three underground storage tanks next to David Rosenfield's property represent just a tiny fraction of the 55,257 underground tanks at approximately 20,000 facilities in the state of Texas, according to the TNRCC. With about 100 new tanks installed and 100 to 200 old tanks removed each month, the total number of tanks remains fairly steady. Some hold gasoline, others hold chemical or chlorinated solvents. And up until the mid-'80s, the regulation of these tanks consisted of, well, practically nothing.
"I don't know that we did anything prior to 1985," says Nathan Weiss of the TNRCC's technical services division.
But to be fair to Texas, neither did the rest of the country. Even with gas stations popping up in droves as the interstate highway system took shape in the middle of the last century, there was no federal program to monitor underground tanks for several decades.
"Even though contamination is a well-understood phenomenon, nobody thought that much about it with regard to underground storage tanks," says Lois Epstein, an environmental engineer now based in Alaska who lobbied for tighter regulations of tanks in the 1980s. According to Epstein, these tanks usually were made of steel, which corrodes. But the mentality was that if contamination was found in groundwater, "you can always dig a new well," she says.
Although the Clean Water Act of 1972 required owners of very large underground tanks (greater than 42,000 gallons) to monitor them for leaks, these regulations applied to only those tanks that were a direct threat to navigable waters. Even though half of the country gets its drinking water from groundwater, according to the Environmental Protection Agency, there was no protection for those with wells near gas stations.
After lobbying by environmental activists, in 1984 Congress finally made several amendments to the Resource Conservation and Recovery Act of 1976 that spoke to the problems of leaking underground tanks. Subtitle I provided regulations for regular monitoring and reporting, as well as corrective measures and financial responsibility. The EPA also created the Office of Underground Storage Tanks and the Leaking Underground Storage Tank Trust Fund (paid for by a tax on gas) to remediate leaking-tank situations where the responsible party could not be found.
States had the option of adopting the federal legislation verbatim or creating their own, although the state's rules had to be as strict or stricter than the amendments adopted by Congress, and they had to be approved by the federal government. Some states, such as Florida, are known for extremely tight measures that require tanks to be double-walled or have some other secondary containment plan, among other stringent regulations. Like many states, Texas chose to create its own legislation, which was approved by the EPA.
"We felt we could make it better, because we're Texans of course," says the TNRCC's Weiss. "I wouldn't say [Texas regulations] are more or less stringent -- they're just different."
Under Texas law, underground tanks must be protected against corrosion. Most tanks in Texas are made of either fiberglass or fiberglass-coated steel. Unlike in Florida, most tanks in Texas do not have to be double-walled or allow for secondary containment (the tanks near Rosenfield's house are single-walled). Any tank installed after December 1988 had to have a leak detection system, and monthly tests for releases or leaks must be performed on all existing tanks at least once a month. If the monthly integrity test shows evidence of a leak, the tank owners have 24 hours to perform the test again (sometimes the electronic sensors malfunction, indicating a leak where there isn't one). If the second test confirms the leak, the tank must be reported to the TNRCC within 24 hours. The agency's remediation division handles the suspected releases.
Until December 1998, tank owners could apply to have cleanup expenses reimbursed through the TNRCC's Petroleum Storage Tank Remediation Fund. Now, according to TNRCC spokesperson Virgil Fernandez, tank owners are responsible for their own cleanup -- and it isn't cheap. According to the EPA, the average cleanup costs $125,000, although small leaks can cost as little as $10,000. But if contamination affects groundwater, fixing the situation can cost up to $1 million.
The number of releases reported to the TNRCC in the past five years proves that owners were taking advantage of state funding for cleanups while they could. The last year fund money was available, 1,187 releases were reported to the TNRCC. But in fiscal year 2000, the first year tank owners had to take care of cleanup themselves, the number of releases dropped off to only 270. And in fiscal year 2001 -- which ran from September 1, 2000, until August 31, 2001 -- only 173 releases were reported.
Fernandez is hesitant to say that means fewer releases are being made public. Rather, he thinks owners were just benefiting from the fund while they could and that "hopefully they got rid of most of [the ones that were leaking]. That was the reason for the program."
But Ken Kramer, director of the Sierra Club's state chapter, thinks that answer just reflects the state government's willingness to give industry a little extra wiggle room.
"They don't tend to clamp down very hard," says Kramer, who thinks the TNRCC focuses too much on remediating situations like Rosenfield's instead of working to prevent them in the first place. In a sense, industries like big oil are almost allowed to police themselves.
"In part, I grant it is a funding problem, but it's a problem that even when there is inspection and enforcement, the agency always seems to give the benefit of the doubt to industry," says Kramer. And, he says, even if the agency were willing to crack down a little more, getting the funding would be difficult because legislators are so reluctant to impose any fees or taxes that could be passed on to the consumer.
Even when it's the consumers who need to be protected.
It's a bright, beautiful day in the Robindell subdivision where Rosenfield lives, but he can't enjoy it. He's too busy watching the mist from the car wash jump over the 12-foot fence and into his yard. He demands that a reporter go stand under the mist so she can feel how badly it burns the eyes.
"Do you smell the wax?" he yells out.
It is nearly impossible for Rosenfield to say one sentence about the gas station. He has to say at least 50, strung together in a breathless way, each one full of invectives against the enemy. Does the gas station think he's stupid?! How can they be so callous?! How can they have such disregard for privacy and property?! Don't they know this is David fighting Goliath?!
And on and on.
A neighbor of Rosenfield's who didn't want to give his name says he's "neutral" about the situation. Rosenfield has been a good neighbor, he says, "but let's put it this way: He has an agenda, and that's what he's out to prove."
But isn't he worried that perhaps his property is also contaminated?
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The man ponders the question, then slowly answers, "There's evidence that there's been some oil. But the gas station they've been good neighbors. They try."
Trying is not good enough for David Rosenfield, who thinks some of his fellow residents would rather not face the facts. And why should they? He faced them, and for his trouble he's stuck with lawyer's fees, a dug-up yard and a house no one in their right mind would want to buy.
As he walks around his property, Rosenfield ruminates out loud about his situation, which has grown bigger than he ever imagined it would. But despite his preternatural persistence, he insists he's an easygoing guy, not a complainer, and just not the type of person who goes around suing multibillion-dollar corporations. If he'd had his way, it never would have gotten to this point at all.
"They could've written me a check a long time ago, and I would've happily gone away," he says, over the rumblings of the car wash. "Nobody likes hassles, right? I just want to live in peace and happiness. I don't like any kind of confrontation."