Downwinders At Risk
PO Box 763844
Dallas, TX 75376

Phone (972) 230-3185

Email:  Click Here
www.DownwindersAtRisk.org

donate online

In the Matter of the Application § BEFORE THE

Of TXI Operations, L.P. § TEXAS NATURAL RESOURCE

for Permit No. HW-50316-001 § CONSERVATION COMMISSION

PROTESTANTS' EXCEPTIONS TO THE PROPOSAL FOR DECISION

Comes Now Downwinders At Risk, and files their exceptions to the Proposal for Decision. Protestants would show the following:

I. Prologue

Unajulikana.

This is a single word in the Swahili language that communicates a very complex thought. We have no one-word translation in English for it, although we need one for occasions like these. It means "the truth everyone knows, but no one talks about."

Protestants believe that the Proposal for Decision reveals its true nature not in what evidence it includes, but what it excludes, confuses and obscures - its unajulikana.

The Unajulikana of this permit hearing and the ALJ's Decision is at least five fold:

1) Everyone who observed this hearing with any regularity, save TXI perhaps, knows that this proposal for decision is not reflective of what transpired during the hearing itself. It inflates to high status Applicant and Executive Director expert witnesses who were discredited time and again in the record and degrades Protestant fact witnesses for capricious reasons. Its internal inconsistencies are many. It rewrites the testimony of local residents. It is such an intellectually dishonest and contorted interpretation as to appear unrecognizable as a final product from this hearing process.

Even the TNRCC believed that this Proposal for Decision would be far more critical of the permit than it is. It was the Executive Director who, before any decision was announced, asked for lengthy extensions in writing these exceptions. No doubt, the agency believed that it would have a lot of responding to do based on the hearings itself.

It's also true that since the hearings on the merits ended, Protestants have heard first hand accounts from representatives of other Texas cement plants who have had conversations with Agency staff. These staff have confirmed that the agency "got their ass kicked in that TXI hearing" vis a vis issues relating to Best Available Control Technology (BACT) issues. The agency staff also explained how BACT policy has changed toward cement plants as a result of the TXI hearing and how that will affect new kilns and plants.

2

It is indeed a strange and ironic decision when a staunch defender of kiln incineration like the TNRCC takes more progressive action as a result of what it has seen in the hearing than the seemingly more "objective" judges, based on the same events.

Protestants have no doubt that all of the above will be adamantly denied by the Executive Director in his Reply to Exceptions. Such is the nature of Unajulikana.

2) There was no real debate on the chronic human health effects that might be caused by air pollution from TXI. Despite the ALJs' grandiose statements, no judgment can be made on the long-term health effects of TXI emissions because there is no evidence being gathered on the human beings who live downwind of its plume's path.

Physicians who agreed to testify for Protestants about their patients living downwind from TXI were not allowed to by the judges. Likewise, Dr. Legator's health symptom survey was excluded because he refused to violate his professional ethics and over 100 confidentiality agreements participants had signed as the judges demanded. As a result, Protestants were not allowed their expert evidence on human health effects at all. And, except for the fact witnesses' testimony on short-term health nuisance conditions, this was the only evidence that relied on actual knowledge of human health conditions downwind of TXI.

No testimony or piece of evidence by either the Applicant or the Executive Director that purportedly was about human health actually relied on any evidence of human health around TXI. Instead, it relied on the top-down hypothesis that there are safe levels of exposure to thousands of contaminants and TXI emissions seemed not to have exceeded those levels. Sampling of soil and air, no matter how comprehensive or numerous, is not sampling of people. In the middle of this decision there is a large hole. This hole is written around, but it cannot be missed. Before there can be any judgments about human health, you must go to the source. People are missing from every conclusion about health in this decision.

What if we find out, as we so often have over the last 50 years, that the capacity of "current safe levels" to do harm has been underestimated? How will we ever know if, despite official assurances of safety, there is a cancer hot spot, or some other malady disproportionally affecting TXI-area residents? We won't, if the TNRCC, TXI and the ALJs have their way.

Just this last week, "a landmark study" published in the Journal of the American Medical Association concluded that environmental contaminants such as pesticides and herbicides were the primary cause of Parkinson's Disease, not the hereditary factors previously thought. This is exactly the kind of "environmental marker" the ALJs claim do not exist in their decision. Protestants wonder how many, if any, of the toxins TXI is allowed to release have been screened in any way for their ability to cause Parkinson's Disease, much less through study of affected populations living downwind of where the contaminants are routinely released into the air. Protestants predict a long parade of such findings during the next ten years TXI will be allowed to keep burning hazardous waste. This decision's conclusions about health effects from TXI's air pollution were obsolete before its ink was dry.

3

Moreover, despite the ALJs' rhetorical maneuvering to avoid taking notice of their own logic, it is clear that acute adverse health effects are occurring as a result of air pollution from TXI. The very same eight Protestant fact witnesses the judges rely on to conclude there are on-going

sulfurous nuisance odor conditions also testify that these odors often come in tandem with respiratory problems, eye and throat irritation and sinus problems accompanying TXI's plumes onto their property. These are not health effects included in the official risk assessment, however, so somehow, they are discounted by the TNRCC and now, the ALJs. This evidence from people who live across the street from the TXI plant is in so much contradiction with the "expert testimony" from witnesses who live in Austin or Boston that it must be ignored altogether to reach the conclusions in this Decision. And so it is.

In another hypocritical example, the computer modeling used by the 1995-98 odor study comes under strong attack by the judges because its broad conclusions predicted no odors present while more "reliable first-hand observations are dismissed" (PFD, p.99). In other words, pessimistic reports from the field contradicted the optimistic modeling, and the field data was tossed.

But this is exactly what the judges themselves are doing in regard to the TNRCC and TXI computer modeling for health effects. The modeling mechanism of emissions rates used is basically the same - it's applied in one case to odors and in another to health. In the example of odors, the contradiction between modeling predictions and the real world is more obviously and immediately noticeable. In the example of health, no data on human health, except the "first-hand observations" of the residents themselves, has been collected to weigh against the prediction of no adverse health effects from official modeling by TXI/TNRCC. But in regard to short-term health effects, residents whom the judges have found credible have provided testimony that those modeling predictions are wrong.

These same expert witnesses, the modelers, the engineers, the toxicologists, all claim that the levels of pollution now emitted by TXI, much less the allowables in this permit, should not be causing short-term health problems either. And yet the testimony of the eight downwind residents who the judges themselves find "credible" contradicts this prediction with adverse health complaints. The judges ignore this part of the residents' testimony even while they hone in on the accompanying odor. What more devastating attack on the credibility of an expert witness can there be when the 10-year long prediction they have made of the current operations are so wrong as to cause noticeable and debilitating health injury? Clearly, if these experts were wrong about the presence of short-term health effects, the presumption is against them - and with the residents in predicting more serious long-term ones.

The ALJs' claim that the TXI and TNRCC modeling is "conservative." But they also note that in Cement Valley, where the winds take TXI's plume the most, "the valley may cause stagnation of odors, a phenomena not accounted for in the modeling" (PFD, Page 89, Footnote 66). For a stagnation of odors to occur, there must be a higher concentration of the contaminant. This "phenomena" would apply to more than just the odorous contaminants being emitted by TXI. It would apply to all contaminants. And so, as a footnote, the judges are registering their "official concern" about the lack of relevancy of one of the major justifications of their decision to the lives of those most affected by TXI's air pollution. Not that they're going to do anything about it, mind you.

4

This hearing should have been a debate over human health effects of TXI's emissions, but it was not. Instead, it was a lop-sided presentation of evidence that described everything but actual human health of the affected downwind population.

3) Protestants believe class prejudices influenced the ALJs. Testimony of Ph.D-toting "experts" was accepted without qualms, even after cross-examination - often by the judges themselves - reduced their testimony to rubble, while the testimony of plain-spoken, low-income residents were dismissed out of hand for no reason other than suspected "exaggeration." There is an unmistakable and disturbing condescending tone that surrounds the summary of the fact witnesses" testimony in the decision. Protestants feel that the ALJs are worshiping at the altar of a false god - Credentialism.

Credibility from the mere possession of title or degree can only carry one so far, and certainly not across the threshold of common sense. As uncredentialed as most of the Protestant fact witnesses were, they offered the only testimony about what it's like to live directly downwind from TXI. Testimony that was not contradicted by any expert - indeed, could not be contradicted, because none of the experts live where these people do. These experts can only theorize about the residents' living conditions, while the residents can actually describe it. Yet, most of this "fieldÓ evidence" was thrown out by the judges without cause for what they assume to be exaggerated effects to animals, vegetation or their health, only to replace them with exaggerated claims of accuracy from computer modeling and risk assessment theorizing.

One of the most flagrant examples involves four witnesses who were, or still are, professional animal breeders with experiences in different parts of the country and region. Their testimony about the adverse health effects to their breeding stock since they began operations around TXI is completely ignored by the judges even though it was never contradicted by any other evidence or testimony. When it comes to the protestant fact witnesses, this decision arbitrarily circumscribes the evidence to fit the predetermined outcome.

(No doubt the ALJs would have rejected out of hand any claim by a Protestant witness during the hearing that his or her Parkinson's Disease might be tied to emissions from TXI. And yet in light of last week's JAMA article, this claim does not appear as "exaggerated" as they surely would have thought then.)

You don't need a toxicologist to know which way the wind blows in Cement Valley - you only have to look out the window and watch the plumes from TXI. Likewise, you don't need a theoretical computer modeling to tell you that you aren't getting sick - you only have to witness what happens when those plumes come rolling through your property. If only more Ph.Ds had been living in Cement Valley.

As it is, this decision justifies allowing TXI to keep gassing entire neighborhoods of those least able to fight back - the very young, the very old and the very poor. Hard to imagine residents of West Austin being condemned to the same fate.

5

4) The statutory burden of proof was set on its head by the ALJs. Throughout the Decision, the judges conclude that because Protestants did not have an expert witness to directly refute an argument point by point by the Applicant or the Executive Director, then that argument must stand alone in full just from the inertia of the expert's credentials alone. This is true even if a rigorous cross-examination left many unresolved problems or questions with the expert's testimony. This approach ignores the fact that it is the applicant's burden of proof to show conclusively that their facility will not break laws or do environmental or health damage, not the protestants to conclusively proof otherwise. If an expert's testimony is riddled with holes, his or her credibility is not only damaged, so is the argument they were put on the stand to make.

Time and again the ALJs remark in their decision that the Protestants made valuable and accurate criticisms of the Applicant's case in cross-examination or final arguments, but then state that these criticisms cannot be taken under consideration because there was no sponsoring expert for them. This approach extends even to the quoting of EPA guidelines, according to the judges. Because no expert was quoted in the record as uttering the specific passages, they are not allowed in as evidence to be weighed. This is a clearly a ridiculous standard to which to hold the Protestants.

In addition, the judges constantly cite the lack of any evidence, positive or negative, as unequivocally proving the most optimistic scenario. There is no one looking at long-term health effects, ergo there is no evidence to show those effects, thus those effects must not be happening.

On their own, without any justification under the law, the judges shifted the burden of proof to the Protestants to go beyond that required by statute. Under their system, all TXI or the TNRCC had to do was glue any warm body with a graduate degree to the witness chair and have him or her recite glorious hosannas to the permit. And in fact, this was a recurring event. But apparently nothing mattered to the judges after that if there was not a direct counterpart from the Protestants. Not the cross-examination that showed how fragile and wrong-headed the expert's arguments were. Not the fact witnesses' testimony that contradicted it. Nothing. With such a perspective, common sense is an orphan, without a sponsoring witness.

These are among the most blatant truths we know from this hearing, but the judges don't talk about in their decision - its unajulikana. Perhaps the most basic piece of unspoken truth is that residents of Cement Valley and other neighborhoods being assaulted by TXI's plumes have once again been betrayed by a state government that promises in its law books to protect them from such attacks.

The PFD itself is legally and factually flawed in a number of ways. We have found the deepest and most cynical of those flaws to be in the related areas of Nuisance Conditions and Best Available Control Technology.

6

II. PFD Allows TXI to Cause a Perpetual Nuisance Condition In Violation of The Law

This decision, if upheld, forever institutionalizes on-going and illegal nuisance conditions and violations caused by TXI outside the boundaries created by statute. TXI is allowed to keep creating these nuisances without the threat of having to take any meaningful actions to correct the conditions it is causing. For this permit to be granted, Texas law must be broken. As the Executive Director's own representative stated during the hearing: "No facility, no matter what they're burning, can create an odor condition in the state of Texas. It's just an overriding condition" (Vol. 3, p.888). Yet that is exactly what this decision allows.

A. Language Governing Nuisance Conditions

1. Texas Clean Air Act, Texas Health and Safety Code

¤382.003(3) Definition of Air Pollution

"Air Pollution" means the presence in the atmosphere of one or more air contaminants or combination of air contaminants in such concentration and of such duration that (A) are or may tend to be injurious to or to adversely effect human health or welfare, animal life, vegetation, or property; or (B) interfere with the normal use or enjoyment of animal life, vegetation, or property.

¤382.085 Unauthorized Emissions Prohibited

"(a) except as authorized by a commission rule or order, a person may not cause, suffer, allow, or permit, the emission of any air contaminant or the performance of any activity that causes or contributes to, or that will cause or contribute to air pollution (b) A person may not cause, suffer, allow or permit the emission of any air contaminant or the performance of any activity in violation of this chapter or of any commission rule or order."

2. Solid Waste Disposal Act, Texas Health and Safety Code

¤361.089 Permit Denial or Amendment; Notice and Hearing (Used by Judges in Decision)

Section 361.089 in the Health and Safety Code is the only legal citation used by the judges to justify granting of a permit (PFD, p.104). The language of the section is that "The commission may, for good cause, deny or amend a permit, issues or has authority to issue for reasons pertaining to public health, air or water pollution, or land use..." After this, there follows a list of conditions that would lead to such a denial or amendment under this section, including "if it is found, after notice and hearing, that the permit holder has a record of environmental violations in the preceding five years at the permitted site."

Finally, there is a clause that states that "before denying a permit under this section the commission must find 1) that a violation or violations are significant and 2) that the permit holder or applicant has not made a substantial attempt to correct the violations;..." Substantial is not defined in the Solid Waste Act.

7

3. Texas Administrative Code

Title 30, 120.31 (a) (2) Specific Air Emissions Requirements for New, Modified, and Existing Hazardous or Solid Waste Management Facilities

"The owner or operator must demonstrate that the facility or unit will not cause or contribute to a condition of air pollution as defined by the Texas Clean Air Act."

Title 30, 101.4 Nuisance Definition

"No person shall discharge from any source whatsoever one or more air contaminants or combinations thereof, in such concentration and of such duration as are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation, or property, or as to interfere with the normal use and enjoyment of animal life, vegetation or property."

B. Evidence Proves TXI Causes Three Distinct Kinds of Nuisances

1. Nuisance Sulfur Odors

Confirmation of sulfur-like nuisance odors by state inspectors numerous times in the early 1990's resulted in the Agreed Board Order of 1995 (from which TXI has now been released). This Board Order was only the latest in a series of enforcement actions aimed at these specific kinds of nuisance odors. Evidence in the record indicates that these have been a problem for local residents since at least the late 1970's. There was even a special Texas Air Control Board "Midlothian Air Study" in the mid-1980's that was supposed to help end these nuisances - similar to the most recent odor study (P-152-155). 21 of 24 Protestant fact witnesses testified that they had experienced sulfur-like nuisance odors (P-12-37).

The judges cite eight fact witnesses whose testimony they say is "credible" in establishing that the sulfur-like odors produced by TXI are of such a concentration and duration as to be classified as nuisances (PFD, p.89-90). The testimony of the remaining 15 fact witnesses are discounted because of what the judges claim are an impossible litany of other health and animal and vegetation complaints blamed on TXI.

That TXI is still causing an on-going sulfur odor nuisance problem, there is no question, even after the Agreed Board Order that was designed to fix it. According to the judges:

"...it is more likely than not that TXI has created nuisance odors since the implementation of the 0.5 percent kiln exit oxygen limit in 1995, and that they would continue to do so without additional measures taken to reduce odors" (PFD. p.103).

"The credible testimony of several witnesses who reside near TXI establish that they are experiencing offensive odors" (PFD, page 89).

"...the greater weight of evidence indicates that TXI has caused odors to impact some nearby residents even after implementation of the 1995 Agreed Order" (PFD, page 93).

"...a review of complaints filed with the TNRCC since the Agreed Order indicate that, according to the meteorological data, it is possible that TXI was responsible for most" (PFD, page 96).

8

"However, in spite of these efforts (the 1995 Agreed Board Order), neither the ED nor TXI has been successful in determining either the causes of the odors or how to prevent them. Therefore, this is not only an issue that has been addressed in the past, but also one that must continue to be monitored in the future" (PFD,p.103).

TXI and TNRCC's own odor study revealed "consistent," "persistent" and "distinct" sulfur-like odors coming from TXI's stacks (PFD p.99).

2) Non-Sulfur Nuisance Odors

One may argue that since only the sulfur-like odor complaints were the subject of the Agreed Board Order, only they should be counted as a genuine nuisance. But according to the ALJs themselves, verification by inspectors (which leads to violations which usually lead to an Agreed Board Order) should not be a limiting criterion for deciding whether there are other credible nuisance conditions caused by TXI. Their own conclusion is that a slow response time and other factors limit the state's ability to promptly respond to complaints that are reasonably expected to be valid. The ALJs "find little merit in applicant's argument that nuisance odors do not exist because none has been verified by the TNRCC since prior to the 1995 Agreed Order" (PFD, page 95). However, while they take the word of the eight fact witnesses about sulfur-like odors, they turn a deaf ear when it comes to their testimony about other nuisance conditions caused by TXI.

For example, the ALJs state that ("credible") Protestant fact witness Jeanne Rivers of Cement Valley complained about "chemical odors" in addition to the sulfur odors that "were so bad, she and her husband declined to purchase a home they were leasing in Cement Valley." (PFD p.91 )

Martin Mary, another ("credible") Protestant fact witness the judges quote extensively in their decision, cites "acidic and chemical smells" in his pre-filed testimony, along with sulfur-like odors. So did Rachel Seay. So did Norma Newsome. So that half of the fact witnesses whose testimony was deemed "credible" by the judges also cited nuisance odors other than sulfur-like ones. But there is no discussion at all in the PFD as to why the judges are selectively using and discarding their testimony about these other kinds of nuisances. Among the 15 other Protestant fact witnesses, 8 testified that they smelled "chemical" or "lacquer" nuisance odors. An examination of the TNRCC's complaint logs also shows other citizens besides the fact witnesses calling in about nuisance odors that are not sulfuric (ED-23, Attachment 7).

The judges themselves criticize the 1995-98 TNRCC/TXI "odor study," the most expensive and "substantial" part of the Agreed Board Order for ignoring the "chemical or chlorine odors" complaints reported by several near-by residents (PFD, p.101), yet do exactly the same thing when it comes time to address nuisance conditions caused by TXI. Moreover they conclude that waste-derived fuel burning is a cause of these chemical or chlorine nuisance odors, not SO2 laden coal. (PFD, p.102). The judges admit that TXI is producing more than just the SO2 nuisance odors, yet don't treat them as a separate nuisance condition.

9

3. Dust Nuisances

("Credible") Protestant fact witness Jeanne Rivers complained of a dust nuisance caused by TXI, so did Martin Mary; so did Rachel Seay; so did Raymond Massey; so did Norma Newsome; so did Margaret Ann Korkmas-Sears; so did William Redding. Seven out of the eight fact witnesses whose testimony the judges found "credible" when it came to sulfur-like nuisance odors cited a dust nuisance problem as well. In almost every instance the testimony was that a visible plume from TXI settled on, or passed through their property, often causing the nuisance odors, dust nuisances and short-term health effects. (P-22, P-28, P-29, P-30,P-31, P-32,P-35, P-37). Yet again, there is no explanation from the judges about why they are taking these witnesses at their word about sulfur-like odors, but not when it comes to other odors or dust nuisances. The other 15 Protestant fact witnesses also testified they they had experienced dust nuisance conditions as a result of TXI's emissions.

In addition, the Texas Department of Health sent two letters to the TNRCC in 1994 specifically mentioning both the sulfur odor and the dust nuisances. In January, TDH head Dr. David Smith stated that citizen complaints about respiratory problems "are consistent with excessive sulfur compound or dust exposures" (Beauchamp Pre-filed Testimony, Exhibit 18, also P-43). In May, the language is stronger. "Since these contaminants (sulfur compounds and dust) could be contributing to some of the respiratory symptoms reported by residents, and may be attributable to local industry, you agreed to consider more stringent regulations regarding these emissions" (Beauchamp Pre-filed Testimony, Exhibit 18, also P-43). Of course, those more stringent regulations were never adopted by the TNRCC, if indeed they were ever considered.

4. Health Nuisances

Evidence of long-term health effects by Protestants was either excluded or allowed in only under unethical restrictions, i.e. the violation of confidentiality agreements. However, testimony about acute, short-term health effects was allowed in by the judges, as long as it was tied to the actually spotting and tracking of TXI's plumes onto a witnesses' property.

Short-term health effects reported by the eight Protestant fact witnesses the judges found "credible" included: burning nose, eyes and throat, sinus congestion, headaches and respiratory problems - mostly problems with breathing that were asthma-like. (P-22, P-28, P-29, P-30, P-31, P-32,P-35, P-37). Most of the other 15 Protestant fact witnesses also testified to one or more of these symptoms.

Despite the testimony that these acute adverse health effects always accompanied a plume that was clearly coming from TXI's smokestacks and which the witnesses could see from their property, and which often contained very obnoxious odors and/or dust, the judges do not list any of these symptoms as separate health nuisances. Even the regional TNRCC Inspector who most often responded to complaints about TXI differentiated between odor and health complaints in his paperwork (ED-23, Attachment 7). He did so because the state's nuisance statute singles out these very kinds of "human health" effects to be included under the law as distinct from other degradations of the quality of life, such as the use and enjoyment of one's property being curtailed because of odors alone.

10

But even though the judges allowed testimony about acute health effects, and even though the nuisance statute calls for their consideration, such health effects were completely ignored when it came time to write the decision. This makes for some awkward use of quotes from the ("credible") fact witnesses, including a very insightful passage from the testimony of Mr. Mary used by the judges in the decision (PFD, p.90). He states that after being caught in TXI's plume, his eyes were burning and he got a headache, which made him retreat to his house. But the judges only concentrate on the odor nuisance, to the exclusion of the health effects.

A ninth "credible" witness to the potency of these acute health effects is the 1991 Tim Doty incident, in which a TNRCC field inspector also got caught in TXI's plume and was sick with respiratory, throat and nose problems for a full 24 hours afterwards. Despite TXI denials that their plant had anything to do with Mr. Doty's illness, the judges say they believe there is a causal link (PFD, p.94). This would seem to give more credibility to the fact witnesses who've testified to similar symptoms after breathing TXI pollution. In fact, there was no direct or credible effort to rebut the Protestant fact witnesses' testimony about adverse health effects at all from either TXI or the Executive Director.

Even Dr. Beauchamp, a witness for the Executive Director, admitted that "a cause and effect would be there if you had people complaining about burning eyes and sore throats" (Vol. 29,p.7909). Such complaints - "credible" ones at that - are there in the record. And they have been registered by the state for over 30 years now, to no good end so far.

The judges themselves acknowledge acute symptoms in an afterthought by writing a single sentence that "several" of the eight ("credible") fact witnesses "also testified to health effects such as watery eyes and general sinus aggravation"(PFD, p.91). This mischaracterizes the testimony of these eight individuals, much less the other 15 Protestant fact witnesses. According to the judges TXI is never any more trouble then a field of wildflowers. They trivialize the consequences of TXI's plumes routinely invading home and hearth, as well as cheapen the lives of those affected.

According to their own estimates, residents of Cement Valley across the street from the facility, could be in the path of TXI's plumes up to 50% each year (PFD, p.92 f footnote 71). Yet it does not seem to bother the ALJs in the least that this neighborhood - its children and mothers, its working population, and its senior citizens - are threatened for an indefinite period into the future by health nuisances that keep them prisoners in their own homes for up to six months out of every year.

C. PFD Permits Perpetual Violation of the Texas Clean Air Act

1. PFD Excludes Remedies for 3 of 4 Existing Nuisance Conditions

The ALJs only considered evidence surrounding the harm of sulfur nuisance odors in this Proposal for Decision - not other nuisance odors, not dust nuisances and not health nuisances cited by fact witnesses and other sources. Headings by the Judges in the PFD use the language of "odor nuisance" in general, but only nuisance sulfur odors are cited as such a problem - excluding testimony about other kinds of odor, dust and health nuisances entirely.

11

Since they are not remedied in any way in this decision, even after they have been documented as on-going nuisances in the hearing, three out of the four nuisance conditions caused by TXI are allowed to continue into perpetuity without any attempt to prevent their reoccurrence at all.

When the judges state that the Solid Waste Disposal Act law gives an exemption to a facility that has "environmental violations" as long as that facility has made a "substantial attempt" to correct those violations, they are only talking about the sulfur nuisance odors - and nothing else. The other three nuisance conditions documented in the record are not addressed by the "substantial attempts" documented in the decision. If there are other on-going nuisance conditions where substantial attempts at correction by TXI have not been evidenced, as the ALJs themselves say is required, this permit should be denied by default.

2. The Applicant Has Not Made "Substantial Attempts" to Correct Its "Environmental Violations" As Required By ALJs

The ALJs admit that the sulfur odor nuisances being caused by TXI are "significant" and meet its first test for denial of a permit under the Solid Waste Disposal Act (SWDA) statute. Assuming for the moment that the judges' citation of the statute is the correct one, then the only thing preventing a denial of this permit is that, in the judges' opinion, TXI has made what the Act terms a "substantial attempt" to correct its "environmental violations," vis a vis sulfur nuisance odors.

There is no definition of "substantial" in the SWDA itself, or in the judges' decision. According to Webster's 1975 New Collegiate Dictionary, the first two definitions are: "1)(a) consisting of or relating to substance; (b) not imaginary or illusory: real, true; 2) ample to satisfy and nourish."

There is plenty of evidence in the record to show that TXI has not come close to fulfilling either of these two primary meanings of the word. In over 30 years of operations, dozens of violations and hundreds of complaints, TXI has never willingly admitted to any nuisance conditions at all. This stipulation is even included in the Agreed Board Order - it came about only because of a string of "alleged" violations confirmed by state inspectors. The company has had to be pulled kicking and screaming by the state into any kind of lukewarm compromise that would address the different nuisances complained about by citizens.

A good example of this is in the record as P-154, a Texas Air Control Board memo from June 17th, 1985. Written by TACB employee Robert Ross, it is a summary of a meeting concerning TXI's "permit and compliance." Regional TACB Director Melvin Lewis states that "TXI must do everything possible to control SO2 emissions" in light of citizen complaints and a recent Notice of Violation. TXI's representative states the company has already done as much as it can. "Mr. Lewis suggested lowering the sulfur content of the coal. (TXI's) "Mr. Harris said it was as low as possible, but when questioned, said it was as low as economically reasonable." Mr. Harris also states that "many improvements have already been made at the plant, but that there had been SO2 emissions even when the plant was fueled with natural gas, and there would always be SO2 emissions" and that "responses to odors were very subjective and that it appeared that only residents to the east and southeast had been adversely affected recently." Mr. Lewis is adamant however, and says "that regardless of past improvements, recent confirmed nuisance odor complaints had established that the plant was still capable of producing nuisance odor conditions. Mr. Lewis stated emphatically that TXI must take all possible steps to reduce SO2 emissions and that

12

further nuisance odor violations would very likely result in a recommendation for a lawsuit."

End of memo.

A more succinct example of TXI's contempt for its nuisance problem, and the state's track record of failure to address it , you will not find.

Citizens have waited almost 15 years after that meeting for either the state or TXI to make "substantial" attempts and take "all possible steps" to eliminate the sulfur nuisance odors. Neither has followed through, as is evidenced by this decision's admission that such nuisance odors are still a problem. How long a probationary period does a facility get before citizens can expect the state to crack down? How long do citizens have to wait for state government to act forcefully and aggressively on behalf of the least among us as well the most richly endowed? If not 15 years, what about 30?

The company's historical approach to these nuisances reflected in the 1985 TACB memo is the same as it was in this hearing - deny, deny, discredit the complainers, deny. Even during this hearing you had the head of TXI's waste-burning operations declare that his plant "does not create sulfur odor conditions" (Vol.1, p.433). The ALJs written opinion that this pattern of behavior is demonstrable of a good faith "comprehensive" or "substantial" attempt to correct the nuisance problem would be laughable, if it did not result in such a daily hardship for citizens.

Their opinion is all the more quizzical because they repeatedly cite examples of the company's current denials in the text of their own decision (PFD, p.94). And these are not just denials of citizen complaints - these are denials of nuisance conditions documented by a state engineer and their own odor study field personnel. These are "professionals" and when they get gassed, there's no need to question their credibility. The ALJs do bring themselves to admonish TXI that it has "painted with too broad a brush" in such denials (PFD, p.94). The more apt metaphor is hit by a steam roller.

Protestants are amazed at the flexibility of judgment that on the one hand witnesses and acknowledges a company's active denial that nuisance problems exists, and on the other, renders that on-going denial a "substantial;" a "satisfying" attempt at correction of same. How can TXI be credited with making a substantial attempt at correcting problems for which they have never admitted guilt. Even the most rudimentary 12 step program calls for you to first admit you have a problem.

There are only four projects cited by the ALJs in the PFD when they list the "substantial attempt" TXI has supposedly made to correct the sulfur nuisance odors. These are the only four reasons the ALJs use to grant TXI the permit despite the finding that the facility is causing an on-going nuisance (PFD, p. 104). If these four efforts cannot be shown to constitute a "substantial attempt," then TXI does not receive this permit. The four projects are:

a) New Short Term Oxygen limits.

It is not clear in the decision itself if the judges mean the 1995 attempt at tweaking average oxygen levels to solve the sulfur nuisance odors, or the agreement reached between the TNRCC and TXI during this hearing that calls for yet another tweaking of those oxygen averages.

13

The former was part of the 1995 Agreed Board Order - an enforcement document created because there had been numerous Notices of Violation issued by state inspectors over a period of a few years relating to sulfur nuisance odors. This was not TXI's "substantial attempt" at all, but a mandatory enforcement action demanded by the TNRCC as a result of violations of the law. The judges admit that this tweaking has failed to eliminate even the sulfur odors they are exclusively concerned with in their decision (PFD. p.103 PFD, page 96; PFD,p.103).

However, the ALJs claim that there was a miraculous "marked improvement in odors" since the 1995 Order was instituted, and they attribute this to the change in oxygen levels. This is the primary reason they are endorsing another round of tweaking as a solution to sulfur nuisance odors, instead of more aggressive relief. But there is no direct evidence of such a "marked improvement." No witness or piece of evidence uses that kind of language to describe the change from pre-1995 to post 1995 sulfur nuisance odor conditions. No fact witness testifies to it. The only person who said anything remotely like this during the hearing was Judge Broyles himself. He does so in a leading question posed to the TNRCC's regional inspector:

Q: It's correct that you believe the odors have decreased in severity and duration since the agreed order has been put into place. Correct?

A Correct. (Vol.48, p.12979).

And that's it. That's the evidence that this PFD states is convincing enough to justify another tweaking of oxygen levels over more "substantial" attempts to eliminate a public nuisance problem that is decades old. There is no quantification or qualification put on the alleged decrease in sulfur nuisance odors by the witness. There is certainly nothing approaching "a marked improvement" in the inspector's answer. Judge Broyles does not ask him what he bases his opinion on. Representatives from the Protestants do. His answer is that: "personal experience of the odors that I've detected from the plant at times and the fact that I haven't been able to get a confirmed complaint" (Vol.48, p.1298).

Let's take the confirmation argument first. This same inspector testified that there had been no "confirmed" complaints by inspectors since 1993. So based on the inspector's own criterion, there was no difference in pre-1995 and post-1995 nuisance odor conditions, only pre-1993 and post-1993 changes. Yet the complaints from residents kept coming in, belying any improvement. The ALJ's themselves state that because of the lag time in response to complaints by inspectors, the possibly handicapped olfactory tools of inspectors who are veteran smokers, and other factors, official confirmation by inspectors of nuisance odor conditions is not necessary to conclude that such conditions are occurring anyway (PFD, p.95). And indeed, if the ALJs had thought otherwise, they could not have found that TXI has been, is, and will continue to cause, nuisance odor conditions as they did in their decision. So this cannot be used as proof of any "marked improvement in odors" by the judges without severe logic gridlock.

The second part of the testifying inspector's reasoning that there has been any decrease in sulfur nuisance odors at all since 1995 is that his own "personal experiences" confirm this. However, since the inspector doesn't live in close proximity to TXI, there are only two ways the inspector's attention can even be drawn to a nuisance problem. One is when he is performing annual inspections or other kinds of regulatory compliance acts and the other is when he is responding to complaints, which is far more likely. By "personal experience," he is referring to either the

14

frequency of his responses to complaints or the severity of the odors he does discover on the job, or both. The record is not clear on this point.

So now, the only testimony suggesting there's been any kind of decrease in nuisance odors since 1995 is that of a single TNRCC regional inspector who seems to have responded to fewer complaints after 1995 than before, or noticed less severe odors when he was able to arrive in time to catch the offending plumes. But the cause for either one of these phenomena is up for grabs and certainly not directly tied to any post-1995 Agreed Board Order changes in oxygen levels - the whole reason the inspector's testimony is important.

For example, did the inspector personally answer fewer complaints in general after 1995 because of the hiring of additional state inspectors who were now responding instead of him? Was he taking more complaints over the phone and not bothering to make a visit to the complaintant's home?

Here's another equally valid theory about why the frequency of complaints might have dropped after 1995. At least one of the residents who bothered to find out how to make an official complaint and ended up calling in a large number of complaints from 1993-1995, Wendy Early, finally got fed up and just moved away rather than have to live in proximity to TXI any longer. The judges themselves are critical of the lack of response from the state and there is testimony in the record from residents that they sometimes gave up complaining about TXI after awhile because it didn't seem to do any good.

In the end it's not clear from the record if there was any change in nuisance odor conditions after 1995 for residents living around TXI. If there was a change in the number of times the testifying state inspector responded to complaints from those residents, it is equally unclear if that change was due to new oxygen level averages, differences in work patterns, increasing public cynicism, or some other reason. Yet this is the evidence that this decision depends on to prove another tweaking of oxygen levels will eliminate a 30 year old public nuisance problem.

If in their decision the judges are referring to the oxygen level agreement struck between TXI and the TNRCC on the last day of the hearing, then it would seem that there is a larger burden of proof to be overcome in demonstrating that this is going to be more "substantial" than the last attempt at tweaking average oxygen levels in 1995 that did not resolve the problem. But there is no evidence in the record that meets that test. There is nothing to suggest that this minor correction will eliminate the problem of sulfur nuisance odors from TXI. And the ALJ's admit this.

In one stupefying paragraph, the ALJs state that there's really no way of knowing if the remedy proposed by TXI and the TNRCC will in fact solve the on-going sulfur nuisance condition and offer advice to the Commission on what it might do about that possibility. "However, due to the uncertainties regarding the causes of odors, the Commission may wish to consider additional efforts to monitor, identify, and reduce odors if necessary. These efforts could include a commitment to expedite investigations of odor and health effects complaints from the people in Cement Valley. Also, canisters could also be provided to the residents of Cement Valley so that they can collect air samples when experiencing nuisance odors. Finally the Commission could consider increasing the oxygen level to 0.75 percent over 3 minutes. this was their original position

of the ED that changed, by agreement with TXI, on the final day of the hearing."(PFD, p.104).

15

There is no explanation by the ALJs as to why they didn't propose any of these things when they had the chance.

Then comes the kicker. "The ALJs note that the ultimate solution to eliminating odors, even those that do not cause a nuisance, may be to replace the wet process cement kilns with modern dry processes." Those would be the dry process cement plants with pollution control equipment like scrubbers - an option these ALJs refused to impose on TXI in their decision despite evidence that such controls would significantly reduce the amount of sulfur released into the atmosphere.

In effect, the ALJs are telling Cement Valley residents to drop dead. We can't give you the protection granted a citizen of Texas under the law, they seem to say, but we can better monitor your suffering. Let's see, there's the recommendation for quicker response to complaints. And to what end? Another Board Order and some more studies. Canisters for sampling? Though the testimony showed the TNRCC canisters cannot identify the very sulfur compounds with which the ALJs are most concerned (Vol.44, p.12083). Tweaking with the oxygen level yet again? Sure, even though there's no evidence that this will ever solve the problem either.

More important than the callousness from a legal perspective is the admission from the ALJs that, in all likelihood, the on-going sulfur nuisance odors will continue. When they say that and still grant TXI's permit, they are sanctioning such nuisance odors into perpetuity.

Since the oxygen level agreement touted by the ALJs was agreed upon on the last day of the hearing, there were no witnesses that testified to its effectiveness, and there was no chance for Protestants to cross-examine proponents. Thus, there was absolutely no opportunity to challenge the agreement in the hearing itself from the party most likely to be harmed by its ineffectiveness. The closest the hearing came to a give and take on this specific issue was the testimony of the author of the Agreed Board Order's "odor study." His testimony was ridiculed by the ALJs themselves (PFD, p.101), and his "suggestion" (not recommendation) was for a stricter oxygen level than is being included in the permit. His testimony was that TXI had no odor problem and didn't need any additional tweaking.

There is no evidenciary foundation upon which to make the claim that this permit, with its adjusted oxygen levels and attendant automatic fuel cut-off provisions alone, will make a bit of difference to the sulfur nuisance odors TXI is causing. And there is certainly not any kind of documentation of the new oxygen level's effectiveness that would overcome the fact that the last such tweaking did not eliminate them. Where is the proof that this will result in a "substantial" improvement to a problems three decades old? Is the offer itself, on the eve of action by the ALJs, a sincere attempt to deal with the problem or an attempt to avoid stricter oxygen numbers in the coming PFD? Motives, as well as results must play a role in determining whether an attempt is "substantial" or not.

After denying throughout the entire hearing that it was responsible for any nuisance conditions at all, TXI comes to the Executive Director on the last day and cuts a small deal, the effects of which are unknown. This does not meet the definition of "substantial attempt," and it does not meet the burden of proof in demonstrating it will eliminate TXI's nuisance sulfur odor conditions as the law says it must.

16

(b) Waste fuel blending. The ALJs seem to suggest that the switch from direct loading from trucks and tankers to a system of storage tanks that blends incoming wastes on-site was an effort primarily aimed at reducing nuisance odors. However, there is not a single shred of evidence in the record that this is so.

According to TXI's own witnesses, this was done to address the problem of uniform fuel flow and waste storage safety, not to lessen any impacts from sulfur nuisance odors or chemical nuisance odors. TXI's tank storage system resulted mainly in a significant increase in the amount of waste being burned at TXI. If, as the judges now seem to claim, it had a significant impact on either of these kinds of nuisance odors, that impact has not been demonstrated with any evidence in the record, other than a discredited odor study theory which the judges don't believe. There is nothing in the record documenting a reduction in the amount of air pollution, or nuisance-causing air pollution, after TXI began operating its tank farm. In fact, one could make the argument that total releases have increased because of the presence of numerous large storage tanks, pipelines, valves and flanges. The number of fugitive emissions sources increased dramatically. Moreover, citizen complaints confirm that both sulfur odor nuisance and non-sulfur odor nuisances are still an on-going problem, even after storage and blending of waste began at TXI.

Because it was built to increase efficiency and volume, the waste blending and storage system of TXI cannot now be credited toward the solution of a problem it was never meant to address in the first place. An unintended (and undocumented) side effect of an action is not a "substantial attempt" to correct a problem. Such action at least must be aimed squarely at the problem.

Building a structure to keep moisture out of the coal fuel. It's obvious from the photographic evidence that this structure covers only a small portion of the coal fuel sitting on-site at TXI at any given time (A-235-236). More importantly however, there is no quantification of how this claimed improvement "substantially" addresses any nuisance condition or what measurable impact it has had -especially since TXI is still causing on-going sulfur odor nuisances. The wetter coal fuel gets, the harder it is to burn, the more fuel you have to use, the more money you have to spend on buying coal or other fuel. A TNRCC expert witness testified that this fact made any effort dealing with moisture content at TXI a means of production choice, separate from any strategy to deal with odors. "It's a production decision, they're going to run as dry as they can."(Vol.48, p.12970). So was this change implemented by TXI to save money in production or reduce odors? It is not clear from the record. There is not a document or witness that testified that the structure was built primarily to address the sulfur nuisance odors the judges claim it is a "substantial attempt" to correct. This suffers from the same failings as the previous attempt. Was it done specifically to address the odors, or is this another side effect?

Even if one believes it was built in a response to TXI's sulfur nuisance conditions, what makes this shed a substantial attempt? Its size? Its cost? The fact it was built at all? Does one open-air shed translate into a substantial attempt to solve a nuisance problem that has lasted for years? Even if it fails to solve anything? The answer to all these questions is no.

Odor Study. This is another curious entry as a "substantial attempt" credited to TXI because it too was part of an enforcement action included in the 1995 Agreed Board Order. TXI had no choice but to cooperate in the study if it wanted to avoid a penalty more severe than the ABO. Such forced conversions cannot be classified as stand-alone "substantial attempts." While it's true

17

that the company had to pay for the study, that doesn't make it a TXI-sponsored attempt. Not unless you conclude paying fines for violations also qualifies as a substantial attempt to correct a violation under the statute. There's no question that the odor study was not TXI's idea and that it was an effort by the state, not "the applicant," as the SWDA statute the judges cite demands it must be.

Besides this basic exclusion by definition, the ALJs themselves don't find that the odor study made any "substantial" progress in correcting the very problem it was established to resolve.

They find "its conclusions, for the most part, unsupported" (PFD page 97). They also point out that it probably wasn't even looking for the right contaminants (PFD p.102). Despite spending approximately half a million dollars they state that "At the conclusion of the odor study, little information is known about the causes of odors by TXI than that known prior to the study" (PFD, p.100). The ALJs make our case for us with these comments. What substantial attempt by TXI at correcting the nuisance odors came out of this effort? None. It was a passive, paying partner to the TNRCC throughout the entire study, which ended-up empty-handed.

With their harsh judgments about the odor study, how can the ALJs then turn around and claim that it was the applicant's substantial attempt to correct the sulfur nuisance odors? We don't know, and they don't explain.

Conspicuous by its absence in this part of the decision is any discussion of the one, the only mechanism of the 1995 Agreed Board Order TXI was completely in control of - the "complaint hot line" supposedly established by the company to field in-coming complaints about nuisances. (And who's bright idea was it to put TXI in charge of fielding its own complaints anyway?) How well did TXI manage this one, small responsibility? Did it use this chance to aggressively act to reform its image? Was the hot line competently staffed and organized? Was the number to call widely advertised? Did the company make every effort to make the hot line work for the local residents it was designed (we suppose) to help? Not exactly.

Nobody at the company even knows where the logs are for the hot line, or even if they ever existed to begin with, so there's no evidence of who called or why. There are no copies of complaint forms, blank or filled-in. There is no printed material on the hot line at all according to TXI and the hearing record. There was no one that was in charge of managing the hot line. There is no record establishing when it started or ended. Every TXI employee who was asked about this hot line on the witness stand simply shrugged their shoulders and said they didn't know that much about it - and that included the plant manager and the head of TXI's Waste-Burning Operations!(Vol. 1, p.391; Vol. 1, pp.165-67; and Vol. 40, p.11058). The point is, given the opportunity to act "substantially" with this tiny part of the enforcement action, aimed squarely at the sulfur nuisance odors, TXI's attempts were illusory. Management couldn't even bring itself to provide adequate organizational support for a simple telephone complaint line. They did not take their job seriously. In turn, we should not now take any of the other slight of hands offered by the ALJs as "substantial attempts" seriously.

According to the only four examples given by the ALJs, "substantial attempt" can mean as little as 1) abiding by enforcement actions imposed by the state for causing the very problem supposedly being corrected; 2) denying the problem exists until the last possible moment, and then sliding a

18

deal of unknown impact across the table; 3) taking advantage of a side effect to a change in operations a facility makes to increase production.

Assuming for the moment that the ALJs reliance on the Solid Waste Disposal Act statute is appropriate, Protestants do not believe that such insincere and inconsequential efforts are what was meant in the statute when it describes "Substantial attempts" at correcting environmental violations. The violations spoken about in the statute are obviously assumed to be important enough as to threaten permit approval. The actions taken to correct them then must be proportionally weighty. They must meet a higher standard. They also must be more direct, purposely effective and voluntary than any of the examples cited by the ALJs to meet the second criterion of the statute. If not, then this clause could be abused to continually escape compliance with the overriding and more demanding provisions of the Texas Clean Air Act. All a facility would have to do is fund a series of superficial studies of its own nuisance condition for years at a time, and it could claim an exemption with each renewal of its permit. This is not how the law was meant to work.

3. PFD Does Not Demonstrate Compliance with the Texas Clean Air Act

Based on the statements by the ALJs already cited, it is clear that they don't believe this permit will eliminate the sulfur nuisance odors from TXI. Why else suggest "additional efforts" to solve the problem to the Commission that includes changing oxygen levels yet again and more timely responses to complaints.

With that admission, there must also follow the admission from the ALJs that this permit offers no guarantee against nuisance conditions by this permit as is required under the Texas Clean Air Act, i.e., "The owner or operator must demonstrate that the facility or unit will not cause or contribute to a condition of air pollution as defined by the Texas Clean Air Act." That definition is the very same as the nuisance statute in 30 TAC: "No person shall discharge from any source whatsoever one or more air contaminants or combinations thereof, in such concentration and of such duration as are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation, or property, or as to interfere with the normal use and enjoyment of animal life, vegetation or property."

This decision institutionalizes a permanent nuisance condition around TXI which is contrary to the Texas Clean Air Act. For the people unfortunate enough to have to live in Cement Valley and other near-by neighborhoods it says that they must sacrifice their health and welfare because the same forces that created and could not control this nuisance over the last 30 years are trying once again to see what they can do.

This PFD states that it's all right for a facility to continue causing a nuisance condition to citizens for as many years as it deems, as long as that facility can show it's made a "substantial" attempt to resolve the problem when its permit comes up for approval or renewal. Whatever the definition of

"substantial," this statute cannot be interpreted as providing an exemption from the Texas Clean Air Act.

Rather the statute cited by the judges refers to a facility seeking a new permit for a new activity, not an existing grandfathered facility that is renewing a permit, or in TXI's case replacing a permit authorization it already had.

19

Moreover, the language in the statute cited by the ALJs is not as definitive as that used in the Texas Clean Air Act. The Solid Waste Disposal Act statute says the Commission may deny a permit because of recent "environmental violations" but can't do this unless the violations are significant and have not been adequately addressed by the facility. This is very different than saying the Commission may enforce the Texas Clean Air Act. This is not an option for the state. It does not say that the Commission may exempt a facility from compliance with the Clean Air Act. If the statute meant what the judges say it does, why isn't it in the TCAA itself as such an exemption, instead of the SWDA provisions governing Commission procedures for issuing new permits? When it comes to ensuring citizens are protected from air pollution nuisances, the Texas Clean Air Act must be predominate.

The only possible way an exemption to compliance with provisions of the Texas Clean Air Act can be made is through Commission "orders or rules", as described in ¤382.085 of the Act - of which this PFD will be neither if adopted by the Commission. If the Commission wants to follow the ALJs advice and grant TXI a running exemption to the nuisance provisions of the Act, the Commission must itself customize and adopt a specific rule or order to that effect. The ALJs on their own cannot do so.

III. PFD Does Not Reflect a Best Available Control Technology Review As Required By Law

Given that TXI will continue to cause nuisance conditions, this permit must be either denied, or modified so as to provide more definitive relief towards the elimination of those nuisance conditions.

Since the ALJs have not found the intestinal fortitude to deny the permit, the fact that they do not at least recommend the same pollution control equipment for a 35 year old cement plant that is now the nation's largest hazardous waste incinerator as the state now requires of new coal and gas-burning cement plants, or that have been required of hazardous waste incinerators for years, is a twisted travesty.

The ALJs refusal to use the power they have to modify this permit so that they could guarantee compliance with the Clean Air Act is mystifying in light of their findings on nuisance conditions caused by TXI. The very first statute cited by the judges in their section on Best Available Control Technology is ¤382.0518(b) of the Health and Safety Code which states that the commission can grant a permit to construct or modify a facility only if the commission finds "no indication that the emissions from the facility will contravene the intent of this chapter, including protection of the public health and physical property."

Surely, the sanctioning of on-going public nuisances, including those that have been documented to cause acute health effects, represents no protection of the health or physical property of those living in proximity to TXI. By the ALJs own admission, TXI's permit does not meet this cited criterion.

A) PFD Erroneously Uncouples TXI's BACT Source Category and Emissions Controls

As if repeating it enough times will make it true, the ALJs constantly state that the 1994 Commission Order outlining BACT for waste-burning cement plants puts TXI into the same

21

source category as commercial hazardous waste incinerators, but doesn't mandate the same emissions controls as incinerators. This is nonsense, no matter how many times it's stated.

A "source category" designation under Texas BACT statutes means that a facility is held to the same emissions control technology as its peers in that same category. Being in that same category means that any BACT technology used by one of those peers is also automatically assumed to be economically reasonable for the facility. It is assumed that "practicability and economic reasonableness have already been demonstrated in historical and current practice" (ED-8, Attachment 11, p.3).

The ALJs would have us believe that the 1994 Commission Order put TXI in the same source category as incinerators only as an industrial tourist, without any impact to the kinds of emissions controls adopted. Waste-burning cement plants and commercial waste incinerators were seen to be enough alike in their emissions as to be classified in the same source category and required to adopt the same control technologies. Instead, the judges exempt TXI from the very kind of BACT standard the 1994 Order was established to implement.

B) Wet Scrubbers Were Not Proved to Be "Economically Unreasonable"

Try as they might to rehabilitate the ugly testimony of TNRCC and TXI witnesses on this subject in their decision, attaching pearl earrings to a hog doesn't change the fact that it's still a hog. To date, TXI still has never received the kind of formal and comprehensive BACT review the law demands.

Reading the decision, one would never guess that TXI's Bill Schofield's testimony about costs of installing wet scrubbers was discredited first by the protestants and then the judges themselves in cross-examination. Not surprisingly, since it was in TXI's interests not to find the cost of scrubbers economical, Schofield's estimates were appropriately characterized as a "Cadillac approach" that inflated the actual costs involved. But in the decision itself, his estimates are brought back from the dead and used as if none of that questioning took place. In reality, everyone attending the hearing knows that Mr. Scholfield's work was so muddled in the applicant's initial case that,

1) the judges specifically halted his testimony and asked the other parties to perform their own "audits" of his figures, and 2) he was replaced by the company with another TXI witness in rebuttal, who took over the job of trying to estimate these costs for a second time.

So it was that the most important part of the original BACT review that TXI had promoted in the application, that the company had had four years to assemble and research, was DOA after Mr. Schofield's one and only appearance in the hearing.

And who had supervised and supposedly provided a competent job of state oversight for Mr. Schofield's TXI's BACT review, including the estimate for wet scrubbers? That would be TNRCC Engineer Paul Deciutiis. When Mr. Scholfield stated that scrubbers would cost $72,000 per ton of HCL removed, that was a figure that was theoretically double-checked by Mr. Deciuttiis in the four years leading up to classifying the permit application as "complete". He shouldn't have needed another opportunity to review Scholfield's work, because he theoretically had spent part of the last four years doing just that. The judges never even remark on this fact.

22

However, it is Mr. Deciuttiis' own testimony (never cited by the judges in their decision) that he only performed a "quick and dirty" review of TXI's figures as submitted with the application (Vol. 54, p.14494). This admission seems to have rolled off the judges' backs. But for Protestants, it was shocking to realize that tax money we believed was being spent at the TNRCC in order to provide the most reliable technical oversight of hazardous waste management activities, was instead being used to rubber stamp whatever numbers the applicant walked in the door carrying. Protestants can not understand how, after Mr. Schofield's estimates were thrown out and his credibility shot, the person who approved his work on behalf of the citizens of Texas becomes the foundation of the judges' decision.

We also do not understand why the judges gave both TXI and the TNRCC a second chance to arrive at new estimates for scrubbers after their initial figures self-destructed. How many chances and years do these two parties get to do the job charged to them since at least 1994? As a result, citizens again get the equivalent of scribbling on the back of a paper napkin performed while the hearing was on-going. Mr. Deciuttis again testifies that his estimate is a superficial "first cut" analysis. For a second time, his work on this subject does not meet the definition of a full and comprehensive review.

The same can be said of TXI's replacement for Mr. Scholfield - Mr. Murin. Previously, Mr. Murin testified only about "Tier I" BACT issues. He was called in rebuttal by TXI to offer a second estimate for wet scrubbers. This meant that Protestants never got an opportunity to cross-examine him since the judges did not grant the Protestants any additional time to do so. Without such questioning, the credibility of Mr. Murin's numbers - his estimate is three times larger than Mr. Schofield's and 13 times larger than Mr. Deciuttis' - is immediately suspect (His must be the "Porche approach") After all, Mr. Schofield's numbers looked just fine to TNRCC and TXI for the three years before Protestants cross-examination of him in this hearing. It's also true that Murin's numbers used some of the same assumptions, and left some of the same gaps as Mr. Scholfield's.

The judges seem to be completely oblivious to the conflict of interest inherent in the subsequent testimony about the economic reasonableness of scrubbers of both of these witnesses. Mr. DeCiuttis, after declaring initially that they were too expensive, (based on Mr. Scholfield's calculations) has every reason to again come to this conclusion to avoid what would have amounted to an admission of a fundamental error in the permit review process under his auspices.

Mr. Murin was assigned by TXI the task to redo Mr. Schofield's work while coming to the same conclusion that scrubbers were not economically reasonable. The company has been adamant in its opposition to any additional pollution control equipment, so do the judges believe they will be getting information reliable enough to base their decision on from a TXI witness on this subject? Especially since he was never cross-examined by the Protestants and his estimate is so out of alignment with any previous numbers offered?

As a result of his "first cut" revised "auditing" of the numbers in Mr. Schofield's estimates that he supposedly had already analyzed in a "quick and dirty" way, Mr. Deciuttis lowers the per ton costs from $72,000 to $19,000. This is an estimate "without refined engineering calculations" (Vol.53, p.14557 and p.14364) Protestants wonder how much lower the cost could come down if Mr. Deciuttis ever applied himself to the task.

23

Moreover he admits in his testimony that his estimate never explored the impact of possibly lower energy capital and maintenance costs and that he used Mr. Scholfield's "high dollar approach" to estimating equipment costs, instead of doing his own original research. (Vol.,53, p.14367; Vol. 53, p.14372; vol. 53, p.14365). He does not factor sales of the gypsum from the scrubbers' blow down, and doesn't know if the waste heat can be recycled back into the plant (Vol. 54, p.14254-25 and p.14558). With all of these factors still unknown, how can this estimate be reliable? It cannot be.

However, even at this much lower number - three times less than the original estimate he approved in the permit application, Mr. Deciuttis claims (unsurprisingly) that wet scrubbers still are not economical.

Incredibly, even after watching the cost estimate from TNRCC decrease by 300%, and receiving a list of what savings are not included, the judges take Mr. Deciuttis' word about this conclusion without any qualification at all. He doesn't cite any statute or guideline that says per ton costs above a certain amount are automatically economically unreasonable (Vol. 55, p.14685-86). The judges simply grant him his conclusion because of his professional credentials as an "expert." But Mr. Deciuttis has not earned that right. His expertise over four years was certainly not evident in approving the inacurrate numbers of Mr. Scholfield in a superficial and unreliable way.

It is only this single statement by a state engineer who has already failed his charge regarding TXI's permit that prevents wet scrubbers - demonstrated in the hearing to remove significant amounts of various pollutants, including Sulfur Dioxide - from being approved by the judges (PFD, p.177).

But his simply saying it does not make it so, and certainly does not meet the burden of proof needed to overcome the bias and incompetence already displayed by Mr. Deciuttis on this subject, as well as the on-going public nuisance harms caused by TXI.

In deciding to take the word of a discredited TNRCC engineer, the ALJs seem to be saying that any ol' BACT review will do, no matter how incomplete or unreliable, as long as the Protestants can't prove it's inadequate through sponsoring witnesses. But that is not a correct reading of our burden under the law. It is the burden of the applicant to prove that there was a full and comprehensive, and credible, BACT review performed. It has not been. We still don't have a complete picture of the true costs of wet scrubbers at TXI. They cannot be excluded from TXI's permit based only on the evidence presented in the hearing.

IV. Conclusion

TXI's permit should be denied or this permit should be remanded back to the judges for further hearing on unresolved nuisance and BACT issues.

___________________________

Jim Schermbeck

Downwinders At Risk

707 Wylie

Cedar Hill, Texas 75104