Unstable Ground

Retired from the sulfur plant that dramatically changed his county's landscape, Harold McVey now fights pollution.

Harold McVey seems quite pleased with himself. The 75-year-old president of Wharton County's Concerned Citizens Against Pollution, who has a penchant for wearing his pants just under his chest and his ball cap well above his forehead, has rallied 700 people to the Wharton community center where they're giving the Texas Natural Resource Conservation Commission a piece of their minds. McVey works the crowd of ranchers and farmers, oil-rig hands and retired sulfur miners, doctors and lawyers, politicians and volunteer firefighters, white-haired ladies and schoolchildren. Here in Wharton, everybody seems to know everybody else, and it's not just because of the tiny towns they come from. These people have been united in an environmental struggle for 18 years, and together they have sacrificed more than $1.5 million in public funds for the cause. They are more than neighbors.

One person, however, sits quietly on the fringe of the gathering of like minds. No one speaks to him, but everyone talks about him. They point surreptitiously in the direction of a balding man in an oxford button-down shirt. "That's Shelton," they whisper. He doesn't seem to merit the familiarity of a first name. Boling native-turned-Houston attorney Michael Shelton is the reason for this April TNRCC hearing and for the $1.5 million county expenditure. His company, Secured Environmental Management, is seeking a permit to dispose of petrochemical hazardous waste in the Boling dome, an enormous salt formation underneath Wharton County. If approved by the state, the salt project would be the first of its kind in the country.

In an attempt to sway the TNRCC staff, and perhaps the onlooking Shelton, the Concerned Citizens speak into the microphone about the geological instability of the salt dome, about their fear that the hazardous waste will escape the dome and contaminate their aquifer. Their children, some not even tall enough to see over the podium, demand to play outside and drink clean water. They want to grow up to be healthy and "fully functional." One boy claims that God is upset with Mr. Shelton. Perhaps noting the number of his constituents in the audience, Democratic state Representative Robby Cook vows not to let the SEM project come to pass.

Through hours of angry testimony, Shelton alternately looks down at his feet and stares into the middle distance. Later, asked how it feels to be the most hated man in his own hometown, he wrinkles up his face and shrugs: The community pressure doesn't bother him. He is not impressed by the passion of their pleas, nor is he frightened by their number.

Years ago Harold McVey ran into Shelton's mother in the grocery store. "What's wrong with Michael? What's his ambition?" McVey asked the woman he'd known since childhood. "Oh, Harold, I don't know," he recalls Shelton's mother saying. "He's hardheaded. He's not gonna take no for an answer."

Michael Shelton sees himself not as a bad guy but as an environmentalist, perhaps a better one than his critics. Secured Environmental Management's proposal is the wave of the future, he says, a better alternative than the dinosaur technologies of landfilling or incineration. "The project is a wonderful thing for the environment," he says. "It's a shame that dealing with pollution, dealing with waste products, has such a bad connotation to it. But it's there, and if you're not doing something about it, you're part of the problem."

Shelton came to his environmentalism by way of capitalism. He has fond memories of his 1950s childhood in Boling, the kind of place where he could walk barefoot to Grandmother's house, where parents always knew their kids were safe. So when he grew up, Shelton and his wife bought a couple hundred acres near town and built a house on it. Over time, the 70-mile commute to his office in Houston became too grueling, and the Sheltons thought about selling their land in Wharton County.

"Although I knew about the dome," he says, "I really didn't think of any economic value to it until we moved back and decided to see if we could sell it for something more than farm value." Shelton listed the land with a couple of realtors who dealt only in salt dome property. They knew the value of Shelton's land lay not in its grassy, green surface but in what was beneath it.

The Texas Gulf Coast is dotted with underground salt domes, explains environmental geologist and Rice University professor emeritus H.C. Clark. About 100 million years ago, the Gulf of Mexico extended all the way inland to Austin, but parts of the basin got cut off from seawater. As the water in these great lakes evaporated, salt was left behind. Over time, different types of sediment were deposited on top of the salt, forming something of a geological layer cake. Because the salt was slightly less dense than these sediments, it migrated upward through fractures in these top layers, forming giant bulbous, lava lamplike structures underground. The Boling salt dome is the largest such structure in the Gulf coastal plain. It begins about 975 feet below the earth's surface and extends down thousands of feet to an unknown depth. It spans 5,486 acres at its crest, beneath both Wharton and Fort Bend counties.  

As the dome pushes toward the earth's surface, the edges of the formation become brackish -- the salt mixing with impurities like limestone and anhydrite. The salt's subterranean journey is finally halted when the top of the dome encounters an underground supply of freshwater. The freshwater dissolves away the top of the salt, leaving only rocky impurities in the form of a caprock. As its name suggests, the caprock "caps" the top of a dome, separating the salt from the sediment layers above it. But the caprock is not exactly solid. The dissolution process leaves it looking a little bit like Swiss cheese. In fact, one of the earliest interests in salt domes was in the oil that tended to pool in the giant caprock holes; the Spindletop gusher was discovered on top of one such dome. Sulfur also is found in many caprocks, and the Boling dome was once the largest producer of sulfur in the country.

But today, now that the oil has been pumped and the sulfur mined, industry is most interested in the salt itself. Chemical companies use salt as a raw material in many manufacturing processes. But even more important than the salt are the large caverns left behind once the salt is removed. The underground salt surrounding the caverns, the chemical companies found, is impermeable to many gases and liquids. If geologic movement creates fissures in the dome, the salt even tends to "grow back together," to heal itself. The caverns are like nature's own storage tanks, requiring no concrete lining, no drums, no additional containment measures at all. In the 1950s companies began storing liquid petroleum, natural gas and chemicals such as propane, ethane, butane and ethylene in these man-made salt caverns. In the 1970s the United States government put the Strategic Petroleum Reserve in salt caverns. Nonhazardous oil-field, mining and industry wastes have been stored in salt domes for decades.

There have been accidents, even with these seemingly more benign substances. In 1992 an overfilled natural gas liquids storage cavern caused an explosion that killed three people in Brenham. But it is salt's potential for hazardous waste disposal that CCAP really worries about. So far no one has ever put hazardous waste in a salt cavern, and this is exactly what Shelton's realtors were planning to change.

They put together a consortium of eight people who formed a company called United Resource Recovery. The plan was to hollow out up to 48 hazardous waste storage caverns, each with a capacity of 2.5 million barrels, in the salt under Shelton's land. URR submitted its application in 1983, and the Texas Water Commission, the TNRCC's predecessor, granted its permit in 1986. But the Concerned Citizens Against Pollution fought the project, and Wharton County officials sued to get the application remanded to the Water Commission. There was no room in the community for disagreement: When a local congressman questioned the wisdom of spending so much money to fend off the waste site, CCAP launched a massive campaign against him. In the next election, the representative got only 39 percent of the vote in his hometown of Wharton and lost his seat in Washington.

The second time around, in 1989, the Water Commission denied URR's permit, citing a failure to show that groundwater would be protected from the hazardous waste. A never-say-die URR sued the commission, but an appeals court upheld the decision. After nearly a decade of fighting, Wharton County residents thought they had won. But they underestimated Shelton's resolve.

Shelton claims that he was merely the landowner in the $20 million URR venture, but secretary of state records cited him as the company's registered agent. And when a French partner backing the project finally pulled out, Shelton purchased all of URR's assets. Soon after the company folded, Shelton says, two of URR's founders approached him. They wanted to try again, to start a new company called Secured Environmental Management. He agreed. When URR applied for its permits, Shelton says, there weren't any real regulations dealing with salt cavern hazardous waste disposal, but 1992 legislation set these guidelines. Now that they had specific requirements to meet, the businessmen were confident they could prevail.

Shelton is convinced that URR's permit was denied simply because the company couldn't prove that the waste would solidify once it got to the bottom of the cavern. The company has solved that problem with its new proposal: The waste would be solidified above ground, then crushed into sand, then pneumatically conveyed into four salt caverns that have been hollowed out with water. Each cylindrical cavern would be about 150 feet in diameter and would extend from 2,000 feet below the surface to a depth of 3,000 feet. Each could hold 550,000 tons of waste, meaning that the entire site could store 2.2 million tons. Shelton, incidentally, would receive an undisclosed fee per ton of waste disposed.  

As for the safety of the area's groundwater, Shelton points out that the salt dome has been there for millions of years. "It hasn't moved, it hasn't migrated, it hasn't morphed into anything else," he says. "There have been no volcanic eruptions. There have been no earthquakes. Nothing!"

Nothing is not what you see when you tool around Wharton County in Harold McVey's navy blue Lincoln Town Car. McVey has lived and worked above the Boling salt dome for most of his life, and he treats it as if it were his own, going off-road and past "no trespassing" signs without a thought to property rights or the capabilities of his automobile. He veers slightly toward the sights on either side of the road as he points them out: This little lady has a grass farm. This old boy used to work at the sulfur plant. This gravel road used to be a good place to park. Behind this tall fence is the nudist colony. These blue pipes show where natural gas is stored in salt caverns below. This slight dip indicates a fault running along here. This water-filled depression tells him, "There's something going on under the earth." This dead tree marks the spot where a sulfur rig hit a gas pocket above the caprock and an 86-foot-tall derrick collapsed into the ground.

This place used to be flat land, McVey says, pointing to a lake near the sulfur plant. Dead treetops and telephone poles pierce the murky water. The faint smell of rotten eggs hangs in the air. McVey worked as a purchasing agent at Texas Gulf Sulphur for 35 years. He and his wife, Virginia, raised their children in the company town of New Gulf, just down the road. The town is all but abandoned, the plant little more than a steel skeleton with soaring smokestacks, but the lake is an impressive reminder of the area's longtime major employer. Eighty-one million tons of sulfur were removed from the dome's caprock here. With so much of this supporting structure gone, the upper layers of earth began to slowly sink from their own weight. Geologists call this phenomenon subsidence. At some point the levee broke, and water from the nearby San Bernard River came rushing in to fill the 50-foot-deep bowl.

The sulfur-mined subsidence of the lake was created over decades, but there are other, more sudden geological phenomena that come with salt domes. In 1983 a football-field-size sinkhole swallowed part of FM 442 and surrounding pastureland overnight. Sleeping families woke to the sound of horses running away from the widening cavity, and two pickup trucks drove right into the watery depths, the passengers swimming for their lives in the dark. Geologists still don't know exactly why the earth opened up over the crest of the Boling dome that night. The consensus is that a large natural cavern, formed by dissolution in the caprock, collapsed. McVey says that when the sinkhole section of FM 442 was rebuilt, it bowed up higher than the rest of the road, but today, as the Lincoln rolls across the stretch, he can feel it dipping again.

McVey's Concerned Citizens are concerned about nearly every aspect of SEM's project: air pollution, drainage ditches, truck traffic, property values, the limitations of rural emergency and fire services, worker safety, community reputation. But their biggest concern is the potential for geological catastrophe. According to a 1988 Bureau of Economic Geology report by William F. Mullican, Boling dome has the largest volume of man-induced subsidence in the state. To geologists, this subsidence indicates structural instability in the dome and in the sediment layers above it. Industry often uses the large size of the Boling dome to argue that the sinkholes and lake formation were isolated incidents, that the majority of the dome is stable and unaffected by the intense sulfur mining. But Mullican's report points out that water flows freely through the many holes formed by the 12,000 oil, gas and injection wells and the 8,000 sulfur production wells that puncture Boling dome's caprock. Over time, the flowing water has dissolved more and more of the rock, making the holes bigger and bigger. If the water has washed away too much of the underground rock structure, a part of the system may collapse under its own weight, just like a giant pothole over a busted water main. Another sinkhole could open up virtually anywhere over the salt dome at any time.  

The most immediate danger, then, is during the filling of Shelton's caverns, when the waste travels by special pipe, called casing string, through more than a thousand feet of shaky sediment and porous caprock. Shelton estimates that each cavern would take two and a half years to fill. If during that time a sinkhole or related subsidence faulting disrupts the area and breaks the piping, waste could spill out before it even reaches the impermeable salt. "If this faulting were to damage casing string where it penetrates a freshwater aquifer," writes Mullican, "leakage of the stored product into the aquifer could be uncontrollable." SEM's piping would pass through a freshwater aquifer.

"The sinkhole had nothing to do with what we're doing," says Shelton. Besides, he says, SEM's casing plan is more comprehensive than any other, with concentric layers of steel piping and cement. But casing programs have failed before, without even the damaging effects of subsidence faulting. While some casing failures can be detected, contained and repaired, the Environmental Protection Agency reports instances in which underground injection wells that use similar casing programs have leaked waste into supplies of drinking water. The EPA conducted a study of mechanical integrity failure rates of hazardous and nonhazardous underground injection wells between 1993 and 1998. While most states' failure rates dropped by half in that time, the failure rate in Texas doubled to a whopping 65 percent. The TNRCC refutes these numbers, claiming a well failure rate of 37 percent. But even one well failure at SEM would be too many for the residents of Wharton County.

"It is hard for a normal person to understand the fear that is associated with living next to a hazardous waste disposal site," says Houston environmental attorney Jim Blackburn, who is representing the Concerned Citizens. "I think as a society we tend to dismiss things because it's 'not in my backyard,' or the NIMBY syndrome, when in fact I think it is a reasonable question to ask: Would you want this in your backyard?"

To Blackburn, though, the SEM controversy is not just about Wharton County's backyard, but about the direction of environmental policy in Texas. He argues that it is because of sound environmental policies that companies are producing less hazardous waste than they did in the 1980s. "The idea that we want to come along here and make it easier to dump the stuff in a hole in the ground, that's contrary in my mind to common sense," he says. The TNRCC's own numbers seem to support Blackburn's argument: Between 1987 and 1997, hazardous-waste generation in Texas increased only 10.5 percent, compared to a 71 percent growth in the manufacturing sector. The agency attributes the limited waste increase to technological improvements and waste minimization efforts. The TNRCC's 2001-2005 strategic plan for solid waste management concludes that "treatment and/or disposal capacity for hazardous and industrial nonhazardous waste appears to be sufficient to meet Texas' needs."

At the April TNRCC hearing, the Concerned Citizens worried that their arguments against the SEM project were falling on deaf ears. In fact, they worried that Shelton's project was practically a done deal. The TNRCC already had drawn up three of the four draft permits required for a salt cavern hazardous waste site, and now the agency was considering a rule change that would make it easier for SEM to meet the requirements for its final permit.

Current TNRCC rules require an applicant to perform a three-dimensional seismic survey of the salt dome. The most technologically advanced surveying tool available to geologists, 3-D seismic can detail the geometry of a salt dome and highlight imperfections such as faults and streaks of impurities that could allow water to leak into the storage cavern and hazardous waste to leak out. But SEM filed a petition with the TNRCC citing the tremendous expense associated with imaging a dome the size of Boling's, and the potential difficulties in gaining access to neighboring properties to conduct the survey. The TNRCC staff's rule change would require 3-D seismic imaging only at the discretion of the agency's executive director.

"Others have made the allegation that there's something fishy going on with regard to this rule change and its processing at TNRCC, the implication being that TNRCC favors this rule change and that they're doing what they need to to make it happen," says Blackburn. "I have difficulty believing that this proposed rule change would be this far along if there weren't at least some support for it at TNRCC, and the primary reason to support this would be to help this application."  

The TNRCC has long been criticized for acting as a permitting agency rather than an environmental watchdog, for promoting economic development rather than protecting public health. It doesn't help appearances that SEM has hired prominent lobbyists Neal Jones and Dan Pearson. Fueling speculation about the agency's cozy relationship with industry, Pearson left his position as the executive director of TNRCC in 1998 to lobby with Jones, whose $2 million client list includes big chemical, electric, pharmaceutical and manufacturing companies. Neither Jones nor Pearson returned calls for comment.

TNRCC spokesman Dick Lewis says there's nothing to the allegations about the rule change, and that the agency doesn't take sides in the permit application process. As long as state law allows companies to apply for salt cavern waste permits, the TNRCC must review the applications.

But to Harold McVey, it certainly seemed like the TNRCC deck was stacked against the Concerned Citizens. Little did he know that state Representative Robby Cook was about to go over the TNRCC's head.

Cook didn't tell McVey about his plan to take up the fight in the Texas legislature because he wasn't sure it would work. SEM's lobbyists were good, and past attempts to outlaw projects like SEM's had been consistently thwarted by pro-business conservatives in the legislature. Cook didn't want to get the Concerned Citizens' hopes up. He didn't want to end up on the wrong side of a CCAP campaign if he failed.

But Cook saw a rare opportunity in the TNRCC Sunset bill that was before the legislature this session. Every ten or 12 years, state agencies come up for review before the Sunset Advisory Commission, a panel of House and Senate members. The commission determines if the agency is still needed, makes any necessary changes, and passes legislation to continue the agency for another decade. Salt dome hazardous waste bans, as bills unto themselves, have had trouble making it out of Republican-controlled and heavily lobbied committees. But with the Sunset bill in the works, Cook could bypass the committee process altogether. He could attach the salt dome measure to the larger TNRCC legislation as an amendment, and he could do it before the entire House. It would be much more difficult for SEM's lobbyists to sway 150 representatives than nine committee members.

The strategy worked -- at least in the House. "We were just very lucky," says Representative Zeb Zbranek, a Democrat from Liberty who tried to pass identical legislation during a similar salt dome battle in his community. "We didn't have a big fight. I think they anticipated it not being able to make it on in the Senate."

Shelton certainly wasn't concerned by the House vote. In fact, sitting in his office the day before the Senate Natural Resources Committee was scheduled to hear testimony on the bill, Shelton seemed positively cool for a guy with millions of dollars hanging in the balance. He even claimed he wasn't keeping up with the status of Cook's amendment. Shelton's exaggerated nonchalance was almost certainly derived from one simple fact: The Natural Resources Committee is chaired by J.E. "Buster" Brown, the powerful Republican from Lake Jackson who's been considered a friend to industry and a foe to environmentalists for all his 20 years in office. Shelton behaved like a man who had it in the bag.

But when, as expected, Brown's committee stripped the TNRCC bill of its salt dome amendment, Cook behaved like a man whose legislation was on life support. He met with key senators, explaining his position and gaining their support. He rallied McVey and the CCAP troops, encouraging them to make strategic phone calls. He even worked on changing Brown's mind. Cook's senate counterpart, Democrat Kenneth Armbrister, whose district includes Wharton County, planned to present the amendment on the Senate floor. But if Brown didn't support the measure, it still wouldn't have a chance. Brown was considered a leader in the Senate on the TNRCC bill, Cook aide Lisa Craven explains. He could cause problems.

On Monday, May 14, Michael Shelton was sitting in the Senate gallery when the TNRCC bill was taken up for final consideration. Three amendments were adopted, five were withdrawn, one failed. Then came the moment of truth: Floor Amendment No. 10, "The commission by rule shall prohibit the storage, processing, or disposal of hazardous waste in a solution-mined salt dome cavern…" The amendment passed by voice vote with no debate and no objections. "There wasn't even a hiccup," says Cook's aide.

It was over, SEM's project was outlawed, and the normally unflappable Shelton was stunned. "Please don't write that, because I don't want the other side to see me bleed, but yeah," he says, "I was just blown away…People that voted not to add the amendment in the Senate Natural Resources Committee went along with it Monday."  

No one knows exactly what happened behind the scenes. Senator Brown did not return a phone call for comment. Perhaps the Texas legislature is as unpredictable as a salt dome sinkhole; Cook thinks that Brown simply thought the amendment through and suddenly resolved his internal conflict between business development and water quality. Or perhaps, in a case of supreme irony, Shelton the master manipulator was simply outmaneuvered: A source close to the issue says that Shelton was the victim of old-fashioned vote-swapping. Brown needed Armbrister to vote his way on other issues, so he went along with the amendment for Wharton County.

As for Harold McVey, he doesn't care much about how it happened, although he does think he'll break Republican ranks and vote for Armbrister and Cook when they come up for re-election. In the meantime, he's going to replace the sign in front of his house that reads, "No Toxic Waste in Wharton County." The new sign, he jokes, will make his address Mockingbird Lane. "Because I'm singing," he says, "like a mockingbird. I sing all kinds of songs."

But McVey would do well to remember the words of Shelton's mother. Shelton says he's not taking no for an answer.And he talks like a man who may have found another way to beat the lauren kern

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