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Enforcement Action-Holcim
May, 13th,
2002
Texas Natural Resource Conservation Commission
Re: Enforcement Action
Agreed Order Docket No. 2001-0337-AIR-E
Holcim (Texas) Limited Partnership
TNRCC Account No. ED-0099-J
Midlothian, Ellis County, Texas
Comments By Downwinders At Risk
In regard to this specific Agreed Order, Downwinders At
Risk asks that the Commission keep two of its own regulatory tests in mind:
1) the adherence to, or violation of, “Best Operating Practices” by Holcim
during construction and (continuing) testing of its new and rebuilt kilns,
and, 2) the adherence to, or violation of, Best Available Control Technology
standards as applied to Holcim by the TNRCC.
Both the company and the state are guilty of a pattern
of behavior in this matter that’s resulted in a much inferior cement plant
than was possible to build, or even promised by permit by Holcim and the
TNRCC.
Holcim’s 15 violations of law as outlined by the Agreed
Order cover a multitude of sins ranging from failing to fill out forms, to
being contemptuous of some of the most basic rules that govern air pollution
emissions.
Holcim willfully ignored regulations triggering
Prevention of Significant Deterioration. The company was caught red-handed
by the TNRCC exceeding permitted capacity and air permits even while it was
only supposed to be “testing” two new kilns. It lied for nine years about
the amount of particulate matter emissions it was emitting. Holcim failed to
maintain its pollution control equipment in good working order; failed to
comply with dioxin and furan testing procedures; failed to install pollution
control devices as stated in the original permit.
Holcim’s test burn for
Kiln 1’s took 7 months, or one month longer than allowed by their TNRCC
permit. Kiln 2’s test lasted 10 months, or 4 months longer than their TNRCC
permit allowed.
Holcim has violated their
permitted emission rates for Particulate Matter, Volatile Organic Compounds,
Nitrogen Oxides and Carbon Monoxide. These are all major pollutants, with
well-known advese human health effects.
Holcim exceeded its emission rate for Nitrogen Oxide
(NOx) - the pollutant that the EPA has identified in DFW as the major
contributor to smog - for a total of 1905 hours or approximately 80 days
during the height of the ozone season. The company is probably still in
constant violation of their NOx emission rate since it’s applied for a
permit amendment which seeks an increase of 2,000 tons a year in NOx
emissions over the limit established in the original 1998. (This number
is1500 more tons a year than the plant was producing in 1996 - the baseline
year used by the TNRCC in its DFW smog clean-up plan).
For its crimes, Holcim is receiving a slap on the
wrist. At the penalty of $223,125, it average under $15,000 a violation.
Hardly a disincentive for future outlaw actions. With the donation of a
hazardous material trailer to the City of Midlothian, that figure is halved
by the TNRCC to just $111,562, or an average of $8400 per crime – the range
of many misdemeanors.
According to the Midlothian Fire Department and TXI,
the Department already has a hazardous materials trailer. Was there any
showing of need for this piece of equipment to the TNRCC for this Agreed
Order provision? Is there any legal threshold which must be achieved that
demonstrates need in the community for any Supplemental Environmental
Project? Is there a convincing statement from the Fire Department itself
stating that Midlothian needed two of these trailers? If not, then
Downwinders At Risk requests the Commission reject the cutting in half of
Holcim’s meager fine in order to satisfy a need in the community which does
not exist.
Holcim made more money by violating the15 laws the
TNRCC says it broke, than the TNRCC is now willing to reclaim in fines.
Indeed, a more appropriate penalty might be to total the ill-gotten gains of
Holcim in hard dollars and than treble that for a fine.
It’s our belief that Holcim not only did not follow
"best operating practices" in building its new plant and installing new
pollution control equipment, it flagrantly flouted the law of the land as it
did so. Nothing less than a $15,000,000 fine, one million for each
violation, will get Holcim’s attention and serve as an incentive for future
permit compliance. In addition, the TNRCC should investigate why TXI, which
is building a similar plant only a few miles away from Holcim, is able to
achieve most of its permit emissions levels while Holcim cannot.
Not only is Holcim’s fine too low, but other penalties
and provisions are too lenient.
TNRCC gives Holcim an additional one and a half years
(545 days) to comply with “authorized air emissions.” This is certain to
result in one and a half more years of non-compliance with the authorized
air emissions in the 1998 original permit, since the company admits it
cannot meet those promised limits. That’s why it’s asking for a permit
amendment to increase emissions.
So Downwinders At Risk requests that the Commission
clarify Agreed Order Provision IV. 3. D, which determines the length of
time for Holcim’s compliance with “authorized air emissions.” Does the
Commission mean for Holcim and citizens to wait 545 days while the company
supposedly tries to bring its emissions in line with the 1998 permit until
the Commission considers the pending permit amendment? Or is this pending
permit amendment some form of “authorized air emissions” and its adoption or
rejection is included in the 545 day limit for compliance with the 1998
limits?
Downwinders At Risk urges the Commission to simplify
the terms of Holcim’s compliance. It should order Holcim to cease operation
of its Midlothian cement plant until such time as it can comply with its
1998 original permit or it has won its permit amendment and demonstrates
compliance with such.
TNRCC’s Agreed Order also exempts Holcim’s violations
from ever being used in a civil court of law. This routine shield is
puzzling in this case because of the enormity of the violations and Holcim’s
thumbing of its corporate nose at the laws of the state of Texas.
Downwinders At Risk believes that the forces of a free market must be able
to work when a company has made a mistake – just as it works when the
company has successes. With the amount and potency of the kinds of pollution
Holcim emitted above its permit limits, the company should be able to be
held liable in all circumstances. In all courts of law. Downwinders At Risk
urges the Commission to remove this protection for Holcim. The company
doesn’t deserve it.
Finally, Downwinders At Risk thinks it would be
appropriate for Holcim to finance a team of TXI engineers in a top to bottom
reassessment of its pollution control strategy, installation and operation
of Kilns 1 and 2 in Midlothian. For some reason, althougth the two plants
are supposedly similar in design and application of control technology, TXI
has been able to achive its promised emissions while Holcim has failed
spectacularly. In what might be one of the most humiliating punishments the
TNRCC could impose, Holcim would have to be lectured and salvaged by a
competitor.
Without this kind of effort or some other third party
investigation of Holcim, it’s likely that this agreed order will not be the
last one for the Midlothian plant.
Those are our comments on the Agreed Order as presented
by the TNRCC. However, there’s a part of this order that’s missing. It’s the
part dealing with what the TNRCC should be doing to make amends for its
complicity in Holcim’s crimes. For as clear as it is that Holnam is guilty
of misrepresentation and shoddiness, the TNRCC is just as guilty as its
official “co-conspirator.”
First, TNRCC should apologize to Downwinders At Risk
and other citizens who sought a contested case hearing for the original 1998
Holcim permit but were denied one by the TNRCC on the grounds that Holcim
new plant would reduce overall emissions. As the company’s violations and
permit amendment make clear, this has not been the case. A truly independent
oversight effort that subjected the company’s representatives to cross
examination might have prevented Holcim’s meltdown in the field by first
subjecting their assumptions in an administrative court. But citizens were
never given that chance by the TNRCC.
Even TXI warned the TNRCC that Holnam’s claims of NOX
reductions were based on misrepresentations about the pollution control
equipment it was installing. Citizen’s experts could have perhaps found
these and other flaws four years ago if there had been a contested case
hearing.
Moreover, in light of Holcim’s track record to date,
TNRCC should be rewarding a percentage of any fine money paid by Holcim as a
result of this Agreed Order to Downwinders At Risk and the other citizens
who requested a hearing instead of paying for yet another hazardous
materials trailer. History has shown that the most effective oversight of
the Midlothian cement plants comes from the people who live around them and
must breathe their pollution. If the TNRCC really wanted to send a message
about enforcement to Holcim, it would help fund the citizens groups who were
right to warn the Commission in 1998 of Holcim’s misrepresentations.
Secondly, the entire issue of Best Available Control
Technology (BACT) as it relates to Holcim - and TXI Kiln #5 - needs to be
thoroughly re-examined by the TNRCC before the permit amendments for both
plants come before the Commission.
Through a Texas Open Records Act request to the TNRCC,
Downwinders At Risk has obtained evidence that a true BACT review for both
new plants was never performed by the Commission.
In a memo dated 10/5/00 from TNRCC employee Randy
Hamilton to TNRCC staff, it’s revealed that the European Community has at
least 18 “dry process” cement kilns, including at least one owned by Holcim,
operating with Selective Non- Catalytic Reduction (SNCR) technology. This
existing European SNCR technology is reducing NOx emissions by up to 80-85%.
(By comparison, the TNRCC’s State Implementation Plan for North Texas
proposes only 30% reductions from 1996 levels in NOx emissions at the three
Midlothian cement plants.)
Since these European plants, or at least a great
majority, seem to have been operating in 1998/99 when Holcim and TXI were
applying for permits for brand new dry process kilns, they should have
automatically been included in the most basic “Tier” of BACT consideration
under TNRCC rules.
The Hamilton memo states that during the1999/2000
development of the DFW State Implementation Plan, the state’s contractor
for cement kiln technology had “no awareness” of the European SNCR cement
plants. Their exclusion from the SIP research meant that an additional 50%
reduction of NOX from some Ellis County cement plants was overlooked by the
TNRCC based on what the Commission thought was “technically feasible.”
But besides this costly error – one that should be
fixed during the “mid-course correction” of the DFW SIP - the memo
indicates that TNRCC staff also didn’t know anything about these European
cement plants when they should have back in 1998. Only two explanations are
possible. If the TNRCC did not know about the European plants until 2000,
then there was no true BACT review of Holcim’s new Midlothian plant or TXI’s
Kiln #5 in 1998. If the TNRCC staff did know about these plants in 1998 but
ignored them in the BACT reviews for Holcim and TXI then the staff broke the
law. Either way, Holcim and TXI were not subject to a genuine BACT review
as required under TNRCC rules.
This BACT mistake comes on the heels of the TNRCC staff
ignoring a retrofitted Holcim Dundee, Michigan “wet process” cement plant
during TXI’s BACT review for the largest hazardous waste permit ever
granted. The Michigan plant was in the process of installing wet scrubbers,
low nox burners and advanced particulate matter controls when TXI’s permit
was granted in 1999, yet it was never considered as a basic “Tier I”
facility for comparison.
In their quest for new permit amendments, Holcim and
TXI should be subject to a true BACT review process they never had the first
time around. And when that happens, true BACT for dry kilns should include
SNCR technology as it already cost-effectively exists in Europe. Downwinders
At Risk believes that SNCR should be the starting point for any dry process
cement kilns in Ellis County seeking modifications in their permits and that
any permit amendment proceedings involving those kilns must include a
revisiting of BACT.
Finally, TNRCC should reform the way
it does “trial burns” such as those that were violated so flagrantly at
Holcim. If a company fails to meet its requirements after its 180 day permit
expires, perhaps it should be required to cease operations for a certain
period of time and finance an independent evaluation of the problem. There
must be some better incentive for a company to solve problems rather than
letting them pollute the air for months on end in the name of “testing.”
Holcim should be fined and fined big, but the TNRCC
should also accept its share of responsibility for the mess Holcim is in and
start rectifying past and present mistakes of its own when it comes to the
Midlothian cement plants.
If you have any questions about these comments, please
don’t hesitate to contact us.
Sincerely,
Downwinders At Risk
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