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ENVIRONMENTAL JUSTICE
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Prepared by the Consensus Building Institute for the
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USING DISPUTE RESOLUTION TECHNIQUES TO ADDRESS
ENVIRONMENTAL JUSTICE CONCERNS
Case Studies
Prepared by
The Consensus Building Institute
Cambridge, MA
consensus building institute, inc.
Sponsored by
The Office of Environmental Justice
Environmental Protection Agency
Washington, D.C.
This work was supported by the Office of Environmental Justice, under Assistance Agreement No. CEQ-829714.
The views expressed herein should not be attributed to EPA nor should any official endorsement be inferred.
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This manuscript was written by Gregg R Macey and Lawrence Susskind of the Consensus
Building Institute and edited by Jennifer Thomas-Larimer of Larmer Consulting.
Project management was provided by Patrick Field and Mary Skelton Roberts of the
Consensus Building Institute. Don Edwards of Justice and Sustainability Associates
offered review and consultation. Cover design by Christine Cerqueira Caspar and Caitlin
Steele. We sincerely thank the Environmental Protection Agency's Office of Environmental
Justice for their funding, direction, and guidance. Finally, we are indebted to the many
residents of Swansea, Elyria, Kennedy Heights, Richmond, Rodeo, Crockett, Bayo Vista,
Manchester, Smith Addition, and Harrisburg, and those who continue to work
in these communities, who entrusted us with their stories.
© 2003 by The Consensus Building Institute and
the Office of Environmental Justice, Environmental Protection Agency
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USING DISPUTE RESOLUTION TECHNIQUES TO ADDRESS ENVIRONMENTAL JUSTICE CONCERNS:
Case Studies
TABLE OF CONTENTS
Introduction
Case 1: Windows of Opportunity for Mediation in Swansea-Elyria, Colorado
Case 2: Negotiating with a Captive Audience in Kennedy Heights, Texas
Case 3: Anticipating the Status Quote in Manchester, Texas
Case 4: Seeking Good Neighbor Agreements in California
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(This space is intentionally left blank.)
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USING DISPUTE RESOLUTION TECHNIQUES TO ADDRESS ENVIRONMENTAL JUSTICE CONCERNS: Case Studies
INTRODUCTION
A leak at a petrochemical plant releases a plume of su If uric acid across 15 square miles,
sending 24,000 people to the hospital. A refinery releases more than 100 tons of a toxic
substance over four communities for 16 days, causing neurological disorders, skin reac-
tions, and eye problems. A neighborhood built over abandoned crude oil storage pits and
exposed to hydrocarbons for 20 years experiences a wave of cancer and lupus cases. A
railroad tanker car parked several yards from homes and a community center releases
3,300 gallons of hydrochloric acid into the air, causing the evacuation of 300 people.
For better or worse, these kinds of accidents and discoveries of contamination open a
window of opportunity in which environmentally overburdened communities can engage
with the industrial facilities in their midst. The crises offer rare glimpses into the routines
and standard operating procedures that allow facilities to function in close proximity to res-
idential neighborhoods, conform to permit and other regulatory requirements, promote a
perception that the risks they present are within acceptable limits, and avoid state- or cit-
izen-sponsored threats to the legitimacy of their operations. Advocates of environmental
justice are learning how to take advantage of these moments, for they represent clear yet
fleeting chances to improve environmental conditions, alter community-corporate relations,
and consider more holistically the interests of those who reside in what are typically low-
income communities of color.
But do such opportunities actually result in change for the better? Do these crises encour-
age improvements to plant safety, preparedness, emergency response capabilities, or
citizen roles in mitigation, monitoring, and decision making? Traditionally, residents in over-
burdened communities have responded to these kinds of crises with litigation, with mixed
results.
This report looks at other means of redress: it contains six case studies that point to the
growing use of "alternative dispute resolution" approaches within environmental justice
communities, and illustrates the varying results achieved through these means. Our goal
is to make sense of early efforts by residents to negotiate with the owners and operators
of these facilities, to consolidate lessons learned and to present advice regarding com-
munity-corporate negotiation for future generations of activists, community-based organi-
zations, regulators, elected officials, and researchers.
The case studies were commissioned by the U.S. Environmental Protection Agency's Office
of Environmental Justice. The Office is interested in developing a better understanding of
the many potentials and pitfalls of using a variety of dispute resolution mechanisms to
resolve environmental disputes in communities faced with either a growing threat of pollu-
tion or the aftermath of an industrial accident.
The cases represent the results of six months of field research, including site visits, inter-
views with almost 80 residents and key informants, archival research (primary sources and
print media), and the analysis of environmental data from government agencies. Three
regions representing clusters of dangerous industries were chosen for the six cases:
Contra Costa County, California; Houston, Texas; and North Denver, Colorado. Within each
region, two cases were chosen for which substantial documentation of environmental bur-
dens, dispute histories, and the negotiations that took place was available. Each case
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INTRODUCTION
presents information regarding the geography and social forces at
work within the community, antecedents to conflict with area
industries, the development of a specific dispute, and steps taken
to resolve the dispute. A final chapter offers a discussion of les-
sons learned by the communities in the many months they have
spent organizing, pursuing litigation, experimenting with conflict
resolution, and implementing the agreements that resulted.
The Limitations of Litigation
When a window of opportunity opens following an industrial acci-
dent or the discovery of contamination, residents face clear
choices about how best to pursue their interests. The cases
selected In this report involve communities that have pursued jus-
tice through a wide range of means. The search for court-ordered
remedies in these situations is well-represented here, in the form
of toxic tort, community right-to-know, and Clean Air Act litigation.
But litigation has potentially disruptive effects, and residents
often find it difficult to achieve legal redress through environmen-
tal justice claims.1 While a few recent legal victories are encour-
aging,2 the record of environmental justice litigation paints a less-
than-optimlstic picture. The coupling of civil rights concerns with
claims of environmental harm has, with few exceptions, failed to
produce legal remedies for alleged environmental injustices over
the past 20 years.3 It is thus important to consider the underlying
costs of environmental justice litigation.
1 G.F? Macey and I.E. Sussklnd, "The
Secondary Effects of Environmental Justice
Litigation," Virginia Environmental Law
Journal 20, no. 3 (2001): 431-478.
2 For example, the Fourth Circuit Court of
Appeals recently futed that the case of
Franks v. Ross, regarding trie siting of a
landfill In a minority area In North Carolina,
can proceed, its claims regarding an ongo-
ing pattern of Intentional discrimination by
Wake County in its siting of landfills are
allowed under Title VI, according to the
Supreme Court's Interpretation of
Alexander v. Sandoval, 532 U.S. 275
(2001).
3 In one exception, North Carolina DOT v.
Crest Street Commun/ty Council, 479 U.S.
6, 8, 9,11 (1986), the parties agreed that
the extension of the East-West Freeway
would constitute a Title VI violation, and a
negotiated settlement rerouted the free-
way.
4 See Q.I? Lopez, Rebellious Lawyering:
One Chicane's Vision of Progressive Law
Practice. (San Francisco: Westview Press,
1992).
B L.W. Cole, "Empowerment as the Key to
Environmental Protection: The Need for
Environmental Poverty Law," Ecology Law
Quarterly 19 (1992): 618-683,
> The use of litigation as a primary strategy for combating
environmental injustices Ignores the significant resources
(time, money, opportunity costs) required to advance a legal
claim and the uneven playing field in which these claims tend
to be addressed.
> Questions of legal standing and the need to have a "live
controversy" result in few environmental justice cases being
decided on the merits. In other words, the underlying causes
of resident discontent are often superceded by the need to
rule on strictly procedural matters.
> Litigation heightens the dependency experienced by victims
of environmental injustice,4 by requiring that they rely on
experts and outside help as opposed to local knowledge.5
t Litigation can increase the sense of isolation experienced
by victims of environmental injustice, because it focuses on a
few select plaintiffs rather than the diverse interests of an
entire community. The fact that environmental justice litiga-
tion can be analyzed through the use of a limited set of cate-
gories (e.g., the Equal Protection clause of the Constitution,
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USING DISPUTE RESOLUTION TECHNIQUES TO ADDRESS ENVIRONMENTAL JUSTICE CONCERNS: Case Studies
6 D.L Anderton, et al., "Hazardous Waste
Facilities: Environmental Equity Issues In
Metropolitan Areas," Evaluation Review 18
(1994): 123-140.
Title VI of the Civil Rights Act of 1964, and Title VIII of the Civil
Rights Act of 1968) suggests that the many and varied
accounts of injustices told by local residents are standardized
for the filing of a legal claim. Thus, the power and organizing
potential of unique stories of environmental harm are neu-
tralized.
> Legal victories do not automatically translate into success-
ful agency or industry change or effective monitoring of such
changes. Community organizing efforts may be hindered
through reliance on legal representation, leaving no con-
stituency with the power to demand enforcement of court
orders. Legal tactics also eliminate scarce resources that
could be used to further community organizing.
> Coupling civil rights claims with existing environmental laws
runs the risk of ignoring some wronged parties. A study of
demographic conditions in communities that hosted a toxic
waste site reported that such areas consist of pockets of
white industrial workers living next to the facilities, surround-
ed by larger communities of color.6 Efforts to build coalitions
between these groups have been limited, given the predomi-
nant use of Title VI and Equal Protection claims, which focus
on race.
To be sure, some of these difficulties emerge regardless of the
methods used by environmental justice communities to advance
their claims. Indeed, the limits to community-corporate negotia-
tion in such a setting can at times mirror some of the drawbacks
of litigation. And it is without question that a steady tide of law-
suits has helped to draw national attention to the claims of envi-
ronmental justice communities, influenced policy at ail levels of
government, and at times even made possible the use of other
dispute resolution techniques (as in three of the cases presented
here). Rather than viewing the two as mutually exclusive, litigation
and alternative methods of dispute resolution should all be con-
sidered as options available to local residents and their repre-
sentatives. The complexities faced by overburdened, low-income
communities of color will rarely be addressed through a single
approach.
A Range of Alternative Approaches
The six cases that follow are arranged along a continuum of dis-
pute resolution options that differ in their process flexibility and
the amount of control the parties retain over outcomes. Process
flexibility reflects the extent to which parties can shape agendas,
the scope of the dialogue, and the selection of representatives.
Control over outcomes represents whether parties have the dis-
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INTRODUCTION
cretion they need to reject options or proposed settlements. Figure 1 shows this continu-
um; it is followed by descriptions of the dispute resolution options and their use in the six
case studies.
Adjudication: Adjudication refers to the involuntary, binding (though subject to appeal), and
highly formalized resolution of disputes through the use of the court system. Adjudication
relies on a judge and/or a jury who are imposed on rather than selected by the disputants,
and who hear proofs and arguments from both sides and make (at least in theory) a prin-
cipled, reasoned decision. Parties make reference to legal precedent and use formalized
and highly structured modes of interaction, tn litigation, parties are not negotiating. They
bring their case before an authority who will, on matters of law, precedent, and judgment,
render a decision that is binding and enforceable by the courts.
Administrative Decisions: Administrative processes include actions taken by federal and
state agencies and regulators. They are bound by formal protocols and rules for determin-
ing relevant issues, violations, penalties, and settlements. Sometimes an administrative
process must allow for citizen participation, as when public hearings and comments are
used in determining appropriate mitigations for a facility's operating permits. Other times,
as when an agency files an administrative action against a facility, conflicts over the inter-
pretation of environmental statutes and permits are resolved without public involvement.
Figure 1: Continuum of Dispute Resolution Processes
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Mini-
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Arbitration
AdjudiciUuni
Control mcr
Arbitration: Arbitration Is an alternative to litigation that started in the 13th century when
English merchants sought to have their disputes resolved according to their own customs
rather than by public law. In arbitration today, parties turn over the decision-making process
to a private individual with stature, experience, and standing who can exercise authority
(similar to a judge in a courtroom). The decision is final, the proceedings are private, and
decisions are typically made at a faster pace than in the court system, with lower costs to
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USING DISPUTE RESOLUTION TECHNIQUES TO ADDRESS ENVIRONMENTAL JUSTICE CONCERNS: Case Studies
all involved. However, the arbitrator may be difficult to select or agree to, and may abuse
his or her discretion. Courts sometimes call upon parties to use arbitration in order to
relieve court congestion. Many contracts, including 95% of all tabor contracts, contain arbi-
tration provisions.
Court-Appointed Special Master: The use of a special master is typically suggested or
mandated by a judge and can be useful in certain complex, multiparty disputes. The judge
cites certain rules of civil procedure governing uncertain or unusual situations, where the
court's resources or ability to adequately assist in the allocation of resources or settlement
dollars is limited. The special master tends to hear the concerns and review the evidence
of both sides and craft allocation procedures that will result in as fair an outcome as pos-
sible, Results are usually binding. Special masters are sometimes criticized for having too
much discretion in resolving a dispute.
Mini-Trial: A mini-trial is an adjudication-like presentation of arguments and proofs com-
bined with negotiation. Summary presentations are made by attorneys to a panel consist-
ing of a neutral advisor and people from all sides with settlement authority. After
presentations, those with settlement authority (usually executives, as this is used often in
business disputes) try to negotiate a resolution. If they fail, the neutral advisor is asked to
predict what the likely outcome will be if the issues are adjudicated. Mini-trials give parties
a quick view of the merits of their case. Using this information, parties are often inclined
to negotiate a sensible resolution to their claims.
Ombudsperson: An ombudsperson is an official appointed to hear parties' complaints and
conduct independent fact-finding investigations with the goal of correcting past abuses of
an organization. Often, the ombudsman is located within the chain of command of a cor-
poration and reports to the head of the organization. Ombudspeople can also be found in
universities and government agencies (such as the IRS).
Neutral Fact-Finder: In a process that can be voluntary or involuntary, depending on the
dispute, parties ask a neutral with specialized subject matter expertise to investigate spe-
cific concerns. The outcome is a report or testimony that is nonbinding, but can be admis-
sible at trial. The process itself is private but at times it can be disclosed to the court.
Mediation: Mediation refers to negotiations that are carried out with the help of & neutral,
independent party. While mediators lack the power of judges and arbitrators, they can skill-
fully shape (for better or for worse) the dynamics of a negotiation. Mediators are particu-
larly useful in multiparty disputes, where the simple management of face-tc-face meetings
is not enough to move the parties toward a viable agreement. Mediators work both at and
away from "the table," sometimes in public, sometimes in private meetings with one or
more parties. Good mediators will first assess a conflict before agreeing to involve them-
selves. This will give them the opportunity to determine how and when they can be of most
help, or if their services are not likely to be helpful at a given time. Mediators may:
1. encourage information exchange and provide new information;
2. help parties to understand each other's interests;
3. help to neframe certain issues in ways that hold the potential for integrative solutions;
4. keep an appropriate balance of emotional expression, sharing of concerns, gathering and
interpreting information, and problem solving;
10
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INTRODUCTION
5. work with parties to test their assumptions and help them realistically assess their
alternatives should an agreement not be reached;
6. encourage parties to brainstorm and explore creative solutions before committing
to any particular settlement; and
7. suggest solutions or potential agreements that meet the interests of all parties.
Mediators are bound by a professional code of ethics to exercise neutrality insofar as the
issues at hand, but they remain advocates for a fair negotiation process.
Facilitation: Facilitation is the skillful management of conversations and meetings.
Particularly in multiparty disputes, getting people to gather information, express their views
and concerns, appreciate what others are saying, and even defend their views under cer-
tain conditions can be difficult. Facilitation can be used to improve the flow of communi-
cation and to avoid unnecessary impasses. Facilitators are selected and agreed to by the
parties, who voluntarily enter Into discussions managed by them. Facilitation does not
involve intervention before or after discussions to help shape an agreement, and can there-
fore be limited in its usefulness when disputes are complicated.
Unassisted Negotiation: Unassisted negotiation involves conversations between two or
more individuals or organizations who believe that they can meet their interests by dealing
directly with each other. No neutral assistance (i.e., mediation, facilitation) is used. Parties
leave it to the group or to one or more people at the table to structure the conversations.
Each of these dispute resolution methods provides different opportunities for parties to
communicate with one another for the purpose of persuasion, which is the common defi-
nition of negotiation. The methods differ in terms of the degree of party control over how
communication is structured, and to what end.
A recent informal survey of environmental justice disputes revealed that some of the above
dispute resolution processes have yet to be applied, including arbitration, neutral fact-find-
ing, and mini-trials. Cases in this report were chosen to represent the remaining process-
es, as summarized in Figure 2.
Three of the cases involved adjudication leading to assisted negotiation (mediation or
special master). The other half involved administrative processes leading to unassisted
negotiation.
Meeting Integratlve Potential
Well-prepared environmental justice advocates who have engaged their client communities
in developing clear objectives and maintaining cohesiveness can step in at moments of
crisis and be helpful. The case studies in this report reveal a common set of activities that
should be carried out in preparation for engaging a dispute resolution process: ensuring
proper representation, structuring the dialogue so that it can transition from a discussion
of the causes of the problem to broader, community-wide issues, preparing constituencies
to be able to make tradeoffs, and organizing the community to implement and monitor
agreements.
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USING DISPUTE RESOLUTION TECHNIQUES TO ADDRESS ENVIRONMENTAL JUSTICE CONCERNS: Case Studies
Preparation must also address administrative actions that are likely to be underway before
the opportunity to pursue dispute resolution emerges. Indeed, multiple administrative, leg-
islative, and/or adjudicative processes are often initiated or ongoing prior to any accident
or resident involvement. These processes help to shape the degree to which residents can
address organizational and regulatory practices that are implicated by an accidental
release. Environmental justice advocates must be aware of existing parallel processes,
their potential to shape norms of settlement, and their constraining power over what is dis-
cussed at the negotiating table. Preparation therefore includes working with agencies to
establish a "division of labor" that seeks to maintain flexibility over the timing and agen-
da-setting of community-corporate deliberations. Such preparation activities, carried out
prior to a given negotiation, are vital to protecting the interests of an overburdened com-
munity.
Once negotiations commence, a set of basic criteria must be met to continue to safeguard
a community's influence over a dispute resolution process and its outcomes. Some crite-
ria apply also to the preparation phase, while others are unique to the negotiation phase.
For instance, it was found that community representatives who were able to encourage dia-
logue both within a negotiation and across a range of parallel dispute resolution process-
es were able to better achieve the interests of their constituencies. It is also important
that resident-negotiators be able to judge tradeoffs between, on the one hand, proposals
addressing industry practices {which a facility owner may reject) and, on the other hand,
Figure 2: Dispute Resolution Processes Illustrated in the Case Studies
1
2
3
4
5
6
S wan sea-Ely ria
communities in Norm
Denver, CO
North Denver and
Commerce City, CO
(Swansea-Eiyria
residents were
plaintiffs)
Kennedy Heights
Subdivision in
Southeast Houston. TX
Manchester, Smith
Addition, and
Harrisburg
communities near the
Houston Ship Channel
in Houston, TX
North Richmond
communities in Contra
Costa County, CA
Unincorporated
communities of
Crockett and Rodeo as
well as Bayo Vista
public housing
development and the
townofTormey in
Contra Costa County,
CA
Vulcan Materials rail
terminal
Conoco petroleum
refinery
Former crude oil
storage pits previously
owned by Gulf Oil (now
Chevron)
Rhone Poulenc sulfuric
add
regenerator/
incinerator
Chevron Richmond
petroleum refinery
Unocal San Francisco
petroleum refinery
X
X
X
X
X
X
X
X
X
X
X
X
X (post-agree-
ment)
X
X
X
AOJ = adjudication; ADM
unassisted negotiation
= administrative decisions; SPM = special master: MED = mediation; FAC = facilitation: UNA ~
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INTRODUCTION
financial and community development contributions to communi-
ties (which industry may favor). Negotiators also need to focus on
surpassing the broader community's least favorable outcome,
rather than what appears to be a minimally acceptable settlement
within a negotiation.
As conflict resolution techniques gain greater acceptance by gov-
ernment agencies and the private sector, residents may be sub-
jected to interpretations of "consensus-building," "mutual gains,"
"win-win," and other models of dispute resolution that are elegant
in theory but potentially devastating in practice.
In theory, the potential for an * integral! veB negotiation? increases
as the number of parties and issues increases. In other words,
parties should be able to search for ways of structuring a deal
that will benefit each side more than the simple division of one or
more assets. In environmental justice negotiations, parties most
certainly have different interests (e.g., security, certainty, recogni-
tion, economic gain), as well as interests that they value differ-
ently.
As an example, residents may want security from accidental
releases, while facility managers may desire security in the form
of continuous production. Residents may want stability in the form
of steadily reduced emissions, fewer episodes, and more pre-
dictable facility operations. Managers may value stable relations
with agency monitors and rule enforcers and a stable internal cul-
ture. Managers may have different conceptions of time, influ-
enced by the urgency of needed environmental improvements,
deadlines, or levels of risk aversion. Residents may give greater
weight to costs imposed on future generations than their private
counterparts. Each side may assign different odds to the antici-
pated outcomes of a negotiation. For example, If facility managers
believe that certain raw material costs will increase while a com-
munity group anticipates they will decrease, they might both agree
to tie financial contributions to the plant's future profit margins. In
addition, parties may have access to different kinds of informa-
tion, skills, or capabilities that can be combined to form the basis
of an agreement.' It is clear, therefore, that the possibilities for
reaching an integrative settlement among multiple parties are fair-
ly unbounded in theory.
In practice, however, few negotiated agreements reflect the depth
of integrative potential that the range of issues and interests
would suggest. The theoretical notion of "integrative potential"
emerges as particularly fragile during conflicts with industrial facil-
ities, their owners, and regulators. This is because the models
assume that all parties will have access to adequate resources,
a desire to expand available resources, mediation or facilitation
services that are truly impartial, sufficient time and access to
Information to engage in constructive problem-solving, and the
ability to generate and enter into contracts that can protect gains
7 Integrative negotiation occurs when par-
lies structure an agreement that creates
more joint value than If they merely allocat-
ed existing resources or worked Independ-
ently on a set of problems underlying the
dispute.
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USING DISPUTE RESOLUTION TECHNIQUES TO ADDRESS ENVIRONMENTAL JUSTICE CONCERNS: Case Studies
made by all sides. As we will see in the cases, these conditions are often not met.
The concluding chapter uses lessons learned from the six cases to craft a realistic set of
steps that can be used to evaluate available methods for their true integrative potential.
The central lesson suggested by these cases is that dispute resolution techniques are
most helpful when used to supplement existing efforts, help a community leverage its com-
parative advantages, and ensure the flexibility required for dialogue to progress from imme-
diate concerns to anticipated challenges to solutions that are truly integrative. These
cases offer clear signs that community leaders are learning how to use the full range of
alternative dispute resolution methods.
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Windows of Opportunity for Mediation in Swansea-Elyria, Colorado
Gregg P. Macey
PARTI.
"Like a Big Balloon in the Sky"
One of the things we have managed to do in our little career here in the middle of this mess is to
set precedent. For example, the jury award in the ASARCO/GIobe plant suit was the largest jury
award ever made to a community at that time. In this case, our attorney tells us that we're the first
community group that ever got standing in the federal court to sue. And so it sends this message:
Look, you can't take advantage of community people, they're not stupid, they're not resourceless.
You can't just walk on folks because they're people of color, because they're poor. You can't do
that. And that to us is the great joy - Lorraine Granado, President of the Cross Community
Coalition
Background. To the north of 1-70 near the border of Denver and Adams Counties
in Colorado lies a series of neighborhoods increasingly brought together to discuss why
the environment in which they live may be causing them harm. The communities of
Globeville, Elyria, Swansea, Cole, and Clayton currently constitute the "Vasquez
Boulevard/I-70 Site," 450 acres in northeast Denver proposed to the National Priorities
List (NPL) on January 19,1999.1 Within this area, roughly 17,500 people reside in about
5,126 housing units according to the 2000 census. At least 69% of the people in the
study area are of Hispanic origin, 21% are African-American, and 3% are American
Indian, Alaskan Native, Asian, or Hawaiian.2 Inside and immediately surrounding the
proposed Superfund site are roughly 150 industrial land uses including four NPL sites,
three lead smelters, two oil refineries, and numerous RCRA (hazardous waste) sites.3
Much of the area is contaminated with soil concentrations of lead, arsenic, and zinc well
1 Environmental Protection Agency. Draft report for the Vasquez Boulevard and 1-70 site, Denver, CO,
residential risk-based sampling, stage I investigation. Denver: US Environmental Protection Agency, 1999
April. Under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.A.
§ 9601 et seq. (1980) and its major amendment and reauthorization, the Superfund Amendments and
Reauthorization Act (SARA), Congress established the authority to clean up contamination from past waste
disposal practices that now endanger public health. An administrative system was set up to identity sites in
need of remediation, including the establishment of a National Priorities List, that functions to ensure that
the most dangerous sites are cleaned up first. The NPL has a complex series of criteria that have to be met
before a site is placed on the national listing, which empowers the EPA to undertake cleanups, seek
reimbursement from responsible parties, issue administrative orders, and seek court orders directing
responsible parties to act.
2 Agency for Toxic Substances and Disease Registry. Public Health Assessment for Vasquez Boulevard
and 1-70, Denver, Denver County, Colorado, EPA Facility ID CO0002259588. Atlanta: ATSDR Division
of Health Assessment and Consultation, 2002 April.
3 A community organization, the Cross Community Coalition, received a grant in 1998 from the EPA's
Regional Geographic Initiative to study local pollution problems. The CCC identified a variety of emission
sources within their zip code (80216), including mobile sources, bakeries, manufacturing facilities, printers,
metal shops, vehical repair shops, refineries, and a major electric power plant which burns low-sulfur coal.
These businesses together emit more than 18,000 tons of sulfur dioxide, 16,000 tons of nitrogen dioxide,
and 875 tons of volatile organic compounds per year and utilize nearly 5,000 diesel trucks.
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above what is considered safe by the federal government.4 Interstate 70, which split
Swansea and Elyria in half when it was constructed in the mid-1960's, rises high above
these communities on viaducts. The state Transportation Department has considered
expanding the highway to as many as ten lanes.
Insert Map of Area and Land Uses Here
At times literally within the shadow of 1-70, the residents of Swansea-Elyria
persevere. These traditionally working-class neighborhoods retain high rates of
homeownership, are highly organized, and remain proud of the neighborhoods that they
strive to maintain.6 Yet, the stories of those who live here can easily become lost amid
the troubling statistics found in boxes of agency assessments and court documents. This
is the story of how one group of organizers, the Cross-Community Coalition, sought to
turn what could have been portrayed and accepted as a routine accident by an area
industry into an opportunity for that industry to recognize and appreciate the concerns of
neighboring residents, and their participatory vision for improving their quality of life.
The case of the Cross-Community Coalition's (CCC) struggle to hold Vulcan Materials
Company accountable for an accidental air emission also presents an opportunity to
examine the role of mediators in assisting environmental justice groups whose interests
cannot entirely be met through traditional means.
The first thing to understand about Swansea-Elyria, sister communities at the
heart of the most recently proposed Superfund site, is the complexity and origins of the
environmental burdens faced by those who live there. Prior to development of the 1-70, a
variety of ethnic groups (Eastern Europeans, Irish, Italians, and Hispanics) came to work
in nearby packinghouses and other businesses. The concentration of industry grew
rapidly after the construction of 1-70, which follows a common trend in highway planning
to route large-scale mfrastructure through low-income, inner city areas in order to serve
new and anticipated residential and commercial developments (as well as transportation
hubs such as the Denver airport).7 In addition to zoning dynamics which clustered
4 Supra note 2, Appendix B. Phase III of ATSDR's testing (which encompassed 2,986 properties) revealed
that arsenic was present at all properties, with 268 properties showing average arsenic levels greater than
128 parts per million. The highest average arsenic level was 759 ppm in soil based on averaging three
composite samples from the property. Similarly, 276 properties have average soil-lead concentrations
above 400 ppm, with the highest average lead level being 1,131 ppm. ATSDR levels greater than 270 ppm
to be a concern for children who exhibit hand-to-mouth behavior.
5 Morson, B. (1995). In the shadow of 1-70. Rocky Mountain News, 19 Nov. 1995, p. 36A.
6 Several community environmental organizations operate within the area. Neighbors for a Toxic Free
Community, an association of residents of Swansea, Elyria, and Globeville, has worked since 1987 to
educate themselves of remediation efforts surrounding contamination from the ASARCO smelter. This
group now operates under the auspices of the Cross Community Coalition (CCC). a non-profit serving the
three neighborhoods. The mission of the Coalition is to improve the quality of life of residents. CCC
operates a Family Resource Center which offers adult education classes, youth employment, job placement,
parenting classes, nonviolence and environmental education, and other social services. CEASE, which
includes residents of Clayton. Elyria, Swansea, and Southwest Globeville, represent the broader health
concerns throughout the VB/1-70 Superfund process, by demanding appropriate soil clean-up levels, hiring
a national expert in arsenic and lead toxicity, organizing educational forums, and working withthe ATSDR.
7 Bullard, R. & Johnson, G. (Eds.) (1997), Just Transportation: Dismantling Race and Class Barriers to
Mobility. Stony Creek, CT: New Society Publishers.
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industry in northeast Denver8 and the politically-charged process of routing highways, a
third dynamic has contributed to the environmental stigma that continues to attach itself
to the area. Decades prior, the Central Platt Valley, located closer to downtown Denver,
had been the site of the region's shipping yards.9 These shipping yards began to succumb
to the interests of developers who replaced them with more lucrative land uses such as
condominiums. Switching and holding operations were moved to outlying areas,
including the comer of 52nd Avenue and Thompson Court, eight feet from a barbed wire
fence that was used to separate tankers and square cargo holders from a nearby
playground and the Swansea Community Center.10 Often, the terminal would be used to
store hazardous chemicals in tanker cars that were owned by one company, leased by
another, and housed by yet a third.1' Ownership and responsibilities for the terminals and
tanker cars can be difficult to understand, even on paper. The 52nd Ave. terminal would
become the focal point for one of many disputes to unfold as residents addressed the
heavy environmental burdens that they were asked to bear.
Starting in May, 1982,
Vulcan Chemicals,12 a
division of Vulcan Materials
Company, maintained a
railcar service contract with
General American
Transportation Corporation
(GATX). The contract
permitted Vulcan to move 25
cars to points of its choosing
and to use them to transport
goods for a maximum of
18,000 miles during a given
year.13 According to
Figure 1. Tanker Cars Near Site of HCL Release
8 Residents contend that the City of Denver decided to turn the communities of Swansea and Elyria into an
"industrial park" in 1958. Interview of Resident of Swansea, March 8, 2002 in Swansea.
9 Interview with Swansea resident, March 8,2002 in Swansea.
10 Site visit on March 6,2002 by the author was used to generate this description.
1' Vulcan Materials Company, owner of a terminal in Swansea, was the lessee and operator of a rail tank
car that leaked hydrochloric acid in March, 1995, resulting in an evacuation of four square blocks. General
American Transportation Corporation (GATX), based in Chicago, leases rolling stock, including car
#14637, the cause of the incident. GATX Capital Corporation, based in Delaware, owns rolling stock,
including the car in question. Neighbors for a Toxic Free Community et al. v. Vulcan Materials Company
and General American Transportation Corporation. Memorandum Opinion and Order. Civil Action No.
95-D-2617(D.Co. 1997).
12 Vulcan Chemicals had sales of $642 million in 2001, and operated 29 chemical distribution terminals
including 10 that stored HCL within the United States. Vulcan Chemicals produces and transports chlorine,
caustic soda, hydrochloric acid, potassium chemicals, and chlorinated organic chemicals.
www.vulcanmaterials.com/vc.asp (accessed July 25,2002)
13 General American Transportation Corporation, Car Service Contract Number 2856,20 May 1982 and
Revised Rider No. 44, November 24,1993. The Revised Rider specifically mentions 25 cars, including car
14637, the car that resulted an accidental hydrochloric acid leak. The rubber lining of the tank car that
would eventually break down is stated as the property of GATX, although the Customer, in this case
-------
Vulcan's records, in 1994 the company maintained a level inventory of approximately
36,100 gallons of Hydrochloric Acid (HCL) at the terminal at 52nd Ave. in Denver.14 The
chemical, stored and distributed for use in stimulating the flow of oil in various industrial
processes, is listed as a corrosive, hazardous material with potentially acute health effects
if released.15 At the same time, the facility maintained no release detection systems at its
terminal, and emergency response equipment was limited to "absorbent tubes kept on site
to contain small spills." While site plans of the property and accompanying
descriptions clearly indicate "residential housing" directly across the street from the
terminal as well as "residential neighborhoods south of 52nd Avenue" and "east and south
of the site,"17 the company operated as if it were isolated from nearby residents.18
Vulcan, is held responsible for paying the cost of the interior lining and maintaining and renewing the
lining whenever necessary.
14 Vulcan Chemicals SARA Title III, Tier II Report, Colorado Emergency Planning Form, Reporting
Period Jan. 1-Dec. 31,1994.
15 Ibid.
16 Ibid, under "Additional Emergency Planning Information."
"/#<£
18 The Vulcan employees who would later become involved in negotiations with the CCC had extensive
experience with Community Advisory Panels, or groups of plant managers, environmental professionals,
and residents who share information about plant operations and discuss issues of concern to the community.
Vulcan had created one of these panels, the Community Involvement Group, in 1988 in response to
concerns over health impacts and protests over the production of chlorofluorocarbon precursors at its
Witchita, Kansas facility. Cohen, N., Chess, C.,& Lynn, F. (1995). Fostering environmental progress: A
case study of Vulcan Chemical's Community Involvement Group. Center for Environmental
Communication, Rutgers University and Department of Environmental Sciences and Engineering,
University of North Carolina at Chapel Hill. A corporate official explains their lack of similar response in
Swansea-Elyria:
1 think the main reason is that we are a lean organization that had really focused our resources up
unto that time on our main operating location. So, we have three really significant chlor-alkali
manufacturing plants in different parts of the country that had hundreds of millions of dollars of
capital sunk into them and a lot of people, and that was the place where we had focused. So we
weren't really focused on these small terminal-type operations around the country [Vulcan
estimates that they had between 20 and 30 terminals at the time], and it would be really difficult
for us to, even today, to develop an advisory panel for each of those and just to get it going; it's a
very time-intensive process. Interview with Vulcan corporate official, May 21,2002 via telephone.
-------
TO PROPERTY
fS THOMPSON CT. V/A 51 ST.
Figure 2. Plan of Vulcan Chemicals Facility Source: Vulcan
Chemicals, 1994 SARA Title III Report
The Incident. On March 29,1995, several of the 207,500 railroad tank cars
operating in the United States were housed at the Vulcan Chemical Company terminal hi
Swansea.19 At approximately 2:40 p.m., the sole employee stationed at the terminal
discovered that muriatic acid (35% of which was hydrochloric acid) had eaten a hole in
the bottom of one of the tank cars parked at the terminal.20 As what would amount to
3,300 gallons of the material began to form a vapor cloud which wafted toward
neighboring homes, the employee notified the local fire department.21 The National
Response Center was not notified until later that evening.2 Meanwhile, residents were
slowly becoming aware of the significance of the incident:
So I'm sitting at home at my computer working on a grant and my son, my middle son who would
have been about 23, he called me on the phone and said "Mom you can't believe what's going on
here." He said "I'm over here at Padilla's house and right across the street they've got the
HAZMAT unit, these people have all of their suits on, I don't know what's going on but it must be
bad." And my response is "Paul, get out of there. Come home, get out of there." And he said "I
don't know what it is," and I said "Well if you can ask somebody, but get out of there!" And so
then he said "Turn the TV on, turn the TV on." And this is like 3:50 and they're on there so I turn
it on and they start talking about there's been this spill but at this point they mink it's hazardous
material and they're not really sure if it is but there was a spill and a HAZMAT unit has been sent
to this location. I'm watching this TV and then we hear that it's probably hazardous materials and
19 Brief in Support of Motion for Summary Judgment by General American Transportation Corporation and
GATX Capital. Neighbors for a Toxic Free Community et al v, Vulcan Materials Company et al., CA 95-
D-2617(N.Co. 1996).
20 Vulcan Chemicals, CERCLA Section 104 Information Request, sent to Prevention Section, Emergency
Response Branch, US EPA, May 1,1995.
21 Ibid
22 Ibid.
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so then I race over to, my mom and dad live just behind me on the next block so I raced over there
and there's my mom and my dad, my brother and his wife, and their four children and so my dumb
brother and my dumb dad go over there and then they come back and say well, they said it's
something called HCL and I said "Oh, dear God, HCL!" And I said "Get out of here, get the
babies, get in the car, get out of here! David, take mom and dad and get out of here." And my
dad's going "Well no, I don't want to." "Get out of here, just go, just go, just go!" And then my
neighbor, Jeffrey, who I grew up with, came out and he said "What's going on?" And I told him, I
said "Jeffrey, you have to get some of these old women out of here, man. I mean you've got
people like Nelson and she don't drive, Ms. Radovich and she don't drive," you know you start
naming the widows on the block, they don't drive, we've gotta start getting these people out of
here. So we started kind of doing some evacuation and then about this time, my younger son who
at that point would have been about 8, Mario came home and so I knew it was time for me to get
out of mere, too, I needed to get him out of there. Meantime, while I'm waiting, we kind of got
the old ladies just on that block and started telling people to tell people, tell everyone you know,
and then I went home and I started calling the Fire Department. Well, the freakin' fire department
didn't even have a number where you could call them directly, and so I called downtown and they
didn't know about it and they're telling me to call the local Fire Department...
Well these doggone policemen sat there in their cars on the [evacuation] boundary not letting
people in. And we're going up to them telling them look, you guys: You gotta get on the
bullhorns and drive up and down these streets and tell people to evacuate. They refused to move,
you know, "we're not going in there." They refused to move and so you've got all these folks
who don't even know that this is going on, and these policemen would not move from those
stations, they wouldn't move. And it made us very angry; how are people gonna know? After
that, it had to be already 5 o'clock by then, then Nadia and I went over to the neighborhood health
clinic which is in Globeville, because my friend Gerry was a nurse administrator there, she's a
nurse practitioner and she'd worked at ASARCO and we got to be really good friends. So we
went over and said Gerry, do you know what's going on? She said "no." I said "Turn on the
tube." And so she turned on the tube and she said "Why don't we know about this? Nobody said
a word to us about this." So we called the recreation centers, they were closed. We called the
schools, they were closed. And then we started calling our city councilperson, whatever.
Eventually we found out that they had set up a site at the National Winston Stockshow for people
who were evacuated because they needed to evacuate people but they didn't have any place to go.
Went over there and there were just a few people. And we said well, where are the rest of the
people? And we found out later that the doggone fire department never got there until 5:30, this is
like two and a half hours after the spill, and they were going door to door to evacuate. None of the
doggone firemen knew how to speak Spanish in a community where 47% speak Spanish. They
were going to people's doors saying "Vamoos." Now what the hell does that mean? Vamoos.
You know? One lady, my friend who lived three blocks away from the site did not get a knock on
her door until 8:30 that evening, and I'll tell you that I believe that it's the grace of God that no
one got killed and I'll say this everywhere. You could stand here, I came here and actually we
went to my son's house and we came back, but you could stand here and you could see this cloud
of acid, like a big balloon in the sky, just hanging up there just as still as it could be.23
Unbeknownst to members of the community* a series of steps were being taken to
decide the extent of the risks posed by this cloud of HCL, the appropriate containment
and decontamination approaches to initiate, and potentially the fate of local residents. As
agencies worked toward a solution to the growing threat, residents tried to make sense of
a rapidly unfolding chain of events, reconstructed here from company and agency
documents:
23 Interview of Swansea resident, March 5,2002 in Swansea.
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Table 1. Vulcan Materials HCL Release Incident Timeline.24
March 29,1995
2:40 p.m.
Release occurs from railearGATX 14637 (capably. 20,900
gallons); car was leaking from a bottom sump area at the rate
of 10-15 gallons pel minute
3:00 p.m.
3:02 p.m.
3:05-5:00
Denver Fire Department Notified
HM-1 (hazardous materials team) responds and immediately
requests notification of EPA and wastewater and cleanup
company; Set up upwind and interrogated Vulcan employee
as to tools, materials, and caoiiections needed to ofilead
remaining contents into an empty HCL ear next to leaking cai
-«
6:45 p.m.
:ft]Qp*l
8:03 p.m.
Still transferring; soda ash arrives and is applied to spilled
apid
Denver Office of Emergency Preparedness requests meters to
monitor the vapor cloud.
After offloading
Lewis Maintenance, an emergency response contractor,
arrives with pumps to transfer spilled acid from the ground;
lacks sufficient hose; 2.5 hours later additional hose is found
9:00 a.m.
Fire Department says that there is an air inversion {hat should
lift between 10:00 and 11:00 a.m. Tells EPA that ii mere are
fiuther inquiries, people should betold to rinse their eyes and
stay out of low-lying areas near the Platte River
9:00 a.m.
5:30 p.m
«*£$$*
10:00 p.m.
Public allowed back in to evacuated area and advised to wash
down homes, cars, and vegetation
Vulcan Chemical calls EPA emergency line to report spill
Completion of neutralization of residual soil on the ground
through use of lime and soda ash; verification through pH
testing by Lewis Maintenance
The ordeal ended late the following evening. Thankfully, the vapor cloud, which could
have proven fatal if inhaled in certain concentrations, had shifted to the east and avoided
24 Timeline constructed from the following materials: Denver Fire Department Field Incident Report,
Incident Number 14149, March 29, 1995; Denver Office of Emergency Preparedness, Hydrochloric Acid
Leak, March 29,1995; Department of Transportation, Hazardous Materials Incident Report 95050318, July
6,1995; Colorado Department of Health, Emergency Management Unit, Incident Report, March 29, 1995;
and Vulcan Chemicals CERCLA Section 104 Information Request Form submitted to Prevention Section,
Emergency Response Branch, US EPA.
-------
**e
the populated areas of Swansea. A few dozen residents were transported to the Denver
Coliseum the previous evening, and 300 residents within a 20-30 block area were
eventually evacuated.26 As the threat began to subside, residents discussed the existence
of tanker cars in their community, and recalled past events such as the rupturing of a rail
tanker carrying 20,000 gallons of nitric acid in nearby rail yards on Easter Sunday in
1983.27 As troublesome to residents as the existence of the railroad tracks that sliced
through their neighborhoods was, other issues were surfacing: (a) the lack of
institutionalized safeguards to both prevent and respond to accidental releases, (b) the
failure of companies such as Vulcan to disclose and communicate the risks posed by their
handling of hazardous materials to residents, and (c) city-community relations after an
incident that left residents feeling mistreated. All would become the focus of meetings
held at the nearby Swansea Recreation Center and the Cross Community Coalition to
discuss the event.28 Meeting notes for a public forum held on March 30th indicate the
following common questions:
• Why were residents still in their homes well after the incident was recognized by the Fire and Police
Departments? (Residents indicated that evacuation seemed to start at 5:30 and many residents were
still in their homes well after that. Fire Department personnel reportedly walked door-to-door in full
self-contained breathing apparatuses without the benefit of loud speakers. They were unable to
converse in Spanish. The starting time for the evacuation was contested, with times as early as 4: IS
suggested.)
• What is the emergency response plan for the area? (The Fire Department had emergency plans, but no
specific plans for individual communities. Residents explained that given the concentration of
Superftmd sites and other industries, the area needed a specific plan. It was mentioned that this was
the third evacuation that had occurred in the neighborhood)
• What level of coordination among city services was achieved during response to the incident?
• Why did various city agencies lack clear information about what was happening during the incident?
(Several mentioned a communications disconnect and recommended a single point of access to
information)
• Why was dealing with bilingual residents such a challenge to those responding to the incident?
• Why was Vulcan Materials not represented at the meeting and did they understand the legal reporting
requirements under EPCRA?
Records indicate that Denver's Office of Emergency Preparedness and the Denver Fire
Department did attempt to learn from the incident and address some of the residents'
concerns, although the extent to which these responses were coordinated and resulted in
improved emergency response capabilities is open to question.29 What remains clear is
^Cortez, A. (1995), Anger spills over: Residents vent their frustration with evacuation. Denver Post,
March 31,1995 at B-2.
26 Denver Office of Emergency Preparedness, Supra note 24.
27 Kirksey, J. & Cortez, A. (1995). Rail-car Leak Forces Evacuation. Denver Post, March 30, 1995 at B-1.
28 Notes to Meeting with Public Concerning HCL Release. March 30,1995 (compiled by author).
29 Letter from Michael Michalek, Staff Assistant, Office of Emergency Preparedness to Debbie Gomez,
Department of Health and Hospitals, July 17,1995 (regarding a plan that provides an overview of agency
duties and responsibilities, the future use of multilingual cards developed by the Fire Depatment, the need
for multilingual Public Information Officers, and their attempts to find out about communications systems
that would allow multiple calls to one phone number providing incident updates for residents); Denver Fire
Department, Critique for Incident #14149, Hydrochloric Acid Leak, April 4,1995 (states that training
sessions should be conducted with mutual aid Departments and the State Patrol for future incidents);
Memorandum from Captain Steve Maddock to Ch. 6 Sponsel, Critique of Hydrochloric Acid Spill 3-29-95,
-------
that at least initially, the companies responsible for the incident were unresponsive to
residents' concerns.
The Dispute. The community's efforts to learn the circumstances surrounding the
release of hazardous chemicals would become the focus of litigation against Vulcan and
other parties.30 The primary cause of action for a citizen suit filed on behalf of the Cross
Community Coalition and several residents was the Emergency Planning and Community
Right to Know Act (EPCRA).31 EPCRA was enacted following two chemical releases
involving Union Carbide plants in 1984 (in Bhppal, India and Institute, West Virginia).32
In both cases, government officials discovered that the extent of the disaster was
heightened by a lack of an adequate emergency planning. Following a study by the EPA
commissioned the following year (which identified over 6,900 chemical spill accidents
across the country hi the previous five years), Congress enacted legislation to improve the
public's knowledge of chemicals located in their communities and to create plans at each
level of government to respond to future accidents.33 EPCRA provides two kinds of
enforcement mechanisms to encourage implementation of its various planning and
notification provisions: administrative proceedings initiated by the EPA, and citizen suits
authorized when an owner or operator of a facility fails to complete certain forms or
submit data or emergency notices.34 At the time, citizen suits were increasingly relevant
to enforcement of EPCRA as funding cuts for the EPA in the 1980's resulted in a
significant drop in administrative enforcement.35
April 4,1995 (site-specific improvements are listed such as the need to define warm and hot zones better
during an incident, need to rethink the use of soda ash and ways to knock some of the vapor cloud down,
need to manage number of people hi the warm zone/site control, need to set up the decontamination trailer
which is described as being in "sad shape," and the need for in-suit communications). Residents agree that
the Fire Department, in particular Fire Chief Rich Gonzalez, pledged to overview their practices and make
changes, including improved notification of clinics and other vulnerable places during an incident. After
the community meetings, the City and Vulcan agreed to have Vulcan purchase and install a reverse 911
calling system for resident notification, which is now in place. Interview with Swansea residents, March 5,
2002 in Swansea.
30 Specifically, Vulcan Materials was accused of failing to follow both Section 103(a) of the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Section 326 of
the Emergency Planning and Community Right-to-Know Act (EPCRA), which dictate how an entity with
hazardous substance holdings about importable quantities must submit emergency notices hi the event of an
accidental spill or release. Plaintiffs' Complaint Neighbors for a Toxic Free Community et al. v. Vulcan
Materials Company et al.. CA 95-D-2617 (N.Co. 1995); Administrative Complaint and Notice of
Opportunity for Hearing. United States Environmental Protection Agency Region VIII v. Vulcan Materials
Company. CERCLA-VIII-95-25.
31 Section 326,42 U.S.C. § 11046.
32 Bumoer, K. (1997). United Musical Instruments v. Steel Company: The Conflict Over the Safety of our
Communities and the Emergency Planning and Community Right-to-Know Act. Northwestern University
Law Review, 91: 1599-1641. The Bhopal accident, which occurred on December 3,1984, killed more than
6,000 people and sent over 100,000 to the hospital. Green, K. (1999). An analysis of the Supreme Court's
resolution of the Emergency Planning and Community Right-to-Know Act citizen suit debate. Boston
College Environmental Affairs Law Review, 26: 387-434.
33 H.R. Conf. Rep. No. 99-962 (1986).
34 42 U.S.C. §§ 11045 and 11046.
35 Stubbs, C. (2000). Is the environmental citizen suit dead? An examination of the erosion of standards of
justiciability for environmental citizen suits. New York University Review of Law and Social Change, 26:
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Under a provision of EPCRA that to date had not been used as a cause of action,36
plaintiffs argued that those responsible for the release of a hazardous substance37 must
submit a written follow-up emergency notice to (in the case of Vulcan) the Denver Office
of Emergency Preparedness and the Emergency Management Unit at the Colorado
Department of Public Health and Environment.38 Violations and associated penalties for
not submitting a follow-up notice were to accrue on a daily basis, and at the time
plaintiffs' civil suit was filed, 396 days had passed since the HCL release. The EPA's
penalty policy for written notices submitted more than two weeks following a release
called for the highest level of penalty ($25,000 per day) for such untimely notifications,
meaning defendants faced potential civil penalties of up to $9.9 million, not including
attorneys* and expert witnesses' costs.
Prior to litigation, plaintiffs (including Neighbors for a Toxic Free Community,
the Cross Community Coalition, and several residents) attempted to share their concerns
with Vulcan management through a series of letters outlining Vulcan's violations of
EPCRA. Initially, they did not receive a response.39 The letters were followed by a 60
day notice of intent to sue sent to Vulcan and other parties.40 Importantly, Vulcan's lack
of responsiveness and the willingness of the district court to hear plaintiffs1 case differed
substantially from the current state of citizen suit eligibility and standard industry practice.
First, prior to Neighbors v. Vulcan, citizen suits under EPCRA for "past violations" had
been upheld as constitutional. It was reasoned that while most environmental statutes
authorized suits alleging a defendant to "be in violation" of the statute, EPCRA
authorizes suit against parties for failure to "complete and submit" certain information.41
Congressionally-mandated deadlines for filing would therefore prove meaningless,
according to an early ruling on the matter, if a defendant could simply file information
77-135. The number of 60 day notices sent for environmental citizen suits grew from 6 in 1981 to nearly
300 by the early 1990's.
36 Section 326.
37 Hydrochloric acid is listed as a CERCLA hazardous substance at 40 CFR 302 (Table 302.4) and as a
hazardous chemical under sections 311(e) and 329(5) of EPCRA, 42 U.S.C. §§ 11021(e) and 11049(5).
38 Such notice is required to contain information listed in Section 304(b) and (c) of EPCRA, 42 U.S.C. §
11004(b)and(c).
39 Plaintiffs' Original Complaint, Supra note 30. Residents were familiar with EPCRA and the purpose of
community right-to-know legislation. They sent four letters to Vulcan asking for such information as
"what tune this happened, why it happened, how long it took to clean up, and who was the person on-site,
how does he receive training, we want a copy of your emergency plan and that kind of information." After
hearing no response the first time, the second letter focused on the same request and Vulcan's legal
obligation to report the events surrounding the HCL incident to the community. After a third letter which
indicated that the community was willing to file suit under EPCRA, the residents finally received a reply.
The response listed mat Vulcan had carried out what it had assumed would sufficiently meet its reporting
requirements, such as reporting to the EPA, the state, and others. A fourth letter emphasized that these
activities did not constitute sufficient reporting. After receiving no response within 30 days of the third
letter, residents submitted their 60 notice of intent to sue.
40 Randall M. Weiner, Senior Attorney, Land and Water Fund of the Rockies to William Grayson, Jr.,
President, Vulcan Materials Company and P.P. Anschutz, President, Southern Pacific Rail Corporation,
July 13,1995.
41 Atlantic States Legal Foundation. Inc. v. Whiting Roll-Up Door Manufacturing Corp.. 772 F. Supp. 745
(W.D.N.Y. 1991).
10
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after receiving a notice of intent to sue.42 While Neighbors v. Vulcan was ongoing, the
Seventh Circuit permitted a citizen suit under EPCRA, holding that the statute required a
different analysis from other environmental laws.43 Following the resolution of
Neighbors, however, the Supreme Court held that plaintiffs in Steel Co. v. Citizens for a
Better Environment lacked a "redressable injury," because the Chicago Steel Company
had filed, after the fact, seven years' worth of usage reports for the HCL that it used to
remove rust from steel.44 This ruling essentially gave companies the chance to file their
past due information before the expiration of a 60-day notice period, rendering citizen
suits over EPCRA reporting requirements useless. Companies such as Vulcan, when
faced with a similar 60-day notice today, would aggressively seek to meet all reporting
requirements. Thus, the plaintiffs' bargaining position in Neighbors as the case moved
from litigation to mediation was considerably stronger than it would be today under
similar circumstances.
It is also important to remember that EPCRA contains provisions for both
reporting the presence and use of hazardous chemicals and taking steps to ensure that
localities, in coordination with state and federal agencies, can respond to a release. Both
were the focus of grievances shared among residents attending community forums
following the accident. Indeed, the March 30 community meeting ended with an
agreement to discuss a more specific evacuation plan for the area.45 The "emergency
planning" component of EPCRA that deals with such concerns requires the establishment
of national, state, and local commissions to prepare emergency response plans to be
implemented in the event of a release.46 The governor of each state is charged with
creating a "state emergency response commission" (SERC), to include those with
"technical expertise in the emergency response field.**47 SERCs are then required to
designate emergency planning districts that will aid in the development and
implementation of emergency plans,48 and to create "local emergency planning
committees" (LEPCs) to develop plans for chemical emergencies, receive reports and
notifications required by EPCRA, and make these reports available to the public.49 Given
the presence of one or more "extremely hazardous substances" in the community, SERCs
and LEPCs write emergency response plans, which must include several kinds of
information.50 Plaintiffs' representation, while aware of the fact that many localities
42 Steel Co. v. Citizens for a Better Environment. 523 U.S. 83, 86 (1998).
43 Ibid at 109-110.
44 Steel Co.. 523 U.S. at 87-88.
45 Supra note 28.
46 42 U.S.C.§§ 11001-11005.
4742U.S.C.§11001(a).
4842U.S.C.§1100I(b).
49 Kuszaj, J. (1997). The EPCRA Compliance Manual. American Bar Association Section of Natural
Resources, Energy, and Environmental Law, p. 15.
50 42 U.S.C. § 11003(c) requires the following: (a) facilities where hazardous substances are stored or used
and routes used to transport these substances, (b) procedures to be followed in the event of a release of the
substance (to include responsibilities of owners, operators, and medical personnel), (c) designation of a
community emergency coordinator, (d) procedures for providing prompt notice of a release to the public
and to key personnel, (e) methods for determining the occurrence of a release and the population affected,
(0 descriptions of emergency equipment and facilities in the community and identification of those who are
responsible for such equipment at each facility, (g) evacuation plans and alternative traffic routes, (h)
11
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(possibly including Denver, where the Fire Department served as the custodian of many
of the EPCRA-mandated documents) were slow to develop their emergency response
plans, chose to focus instead on the notification requirements of EPCRA.51
As with many environmental disputes, this conflict had the potential to follow a
model of regulation where one party (EPA Region VIII) chooses to regulate prior to
another (citizens using the citizen suit provision of EPCRA), reducing the chance that the
second party will achieve their intended outcome.52 Roughly four months after the HCL
spill, the EPA Region VIII filed an administrative complaint under Section 103(a) of
CERCLA against Vulcan. Under CERCLA, the person in charge of a facility utilizing
hazardous substances must notify the National Response Center immediately following
knowledge of the release of a substance hi an amount equal to or greater than reportable
quantities.53 Failure to notify the NRC can result in penalties as high as $25,000 for each
day a violation continues under CERCLA. The two parties entered into negotiations and
Vulcan agreed to pay $844 in civil penalties while entering into a Supplemental
Environmental Project to assist the Denver Fire Prevention Bureau in meeting its EPCRA
obligations (a project to cost no less than $3,163). Following the issuance of a Consent
Agreement between EPA and Vulcan,54 the residents filed a citizen suit under Section
326 of EPCRA. While EPCRA's citizen suit provision gives residents a mechanism for
ensuring compliance with the statute, the extent to which the statute's requirements
differed from CERCLA's was subject to interpretation. Defendants in turn suggested that
settlement under CERCLA with the EPA precluded the resolution of EPCRA claims.55
Plaintiffs attempted to show that CERCLA only addressed Vulcan's responsibility to the
government, while EPCRA required a series of additional steps including a specific, post-
accident, written explanation of what happened, why, and steps that individuals should
take to prevent reoccurrence.
56
A complicating factor in the litigation involved questions of ownership and
liability, as defendants GATX, GATX Capital, and Vulcan sought to prove that
reasonable discretion and responsibility for preventing accidents fell upon each other.57
training programs for emergency planning personnel, and (h) methods and schedules for exercising the
emergency plan,
31 Interview with Attorney, March 6, 2002, in Boulder, CO.
52 While citizens filed their notice and intent to sue on July 13, 1995, they had to contend with the fact that
a consent agreement had already been reached between the EPA and Vulcan when their complaint was
filed.
53 Long, V. (1999). The complexity and lack of incentives in the release reporting requirements of
CERCLA Section 103. Virginia Environmental Law Journal, IS: 245-278.
54 Shortly thereafter, a Consent Order was issued pursuant to Section 109 of CERCLA on October 4, 1995.
Consent Agreement, United States Environmental Protection Agency Region VIII v. Vulcan Materials
., CERCLA-VIII-95-25, October 2, 1995.
35 Opposition to Vulcan Materials Company's Motion to Dismiss. Neighbors v. Vulcan. CA 95-D-2617
(N.Co. 1996).
57 Answer by General American Transportation Corporation and GATX Capital Corporation. Neighbors v.
Vulcan. CA 95-D-2617 (No.C. 1995); Brief in Support of Motion for Summary Judgment by General
American Transportation Corporation and GATX Capital Corporation. Neighbors v. Vulcan. CA 95-D-
2617 (No.C. 1996).
12
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Elements of Dispute Resolution Process, Mediation was proposed by Vulcan
Materials after the Court granted summary judgment to GATX and GATX Capital while
finding that plaintiffs' suit was not barred by the existing Consent Agreement between
the EPA and Vulcan.58 It was the first time a community was granted standing to sue in
an EPCRA case. Parties filed motions for extension of time to answer the citizens'
complaint while attempting to engage a mediation process. An experienced mediation
firm, CDR Associates, was chosen to provide neutral assistance throughout. The
decision to agree to move forward with the mediation was made by at least several of the
plaintiffs, who believed that the forum was better suited for reaching their objectives,
which in part could not be achieved through litigation:
The other tiling that is most fundamental to any of this is we went in that door saying there are
several things that we want and money is not in the top five. We want those people to understand
who we are, we want those people to learn about our community, we want those people to have
some sense of what they did and who they harmed. We don't want to sit down here and say there
was a spill, give us money. We want them to walk out of this room and understand that there are
living human beings here and children and a community and a way of life that was disrupted and
that money isn't the answer. What really is going on here is that there's this total disconnect from
diem, the company and what they do and the fact that they are a neighbor to us, they're in our
neighborhood, they're in our community, and yet they're totally disrespectful. Not in the spill.
When they move in here and they don't bother to meet you and they don't bother to talk to you
and they don't come to the community association meetings and it's like you don't even know
they're there until they spill 3000 pounds of HCL on you. You know, that's what we wanted, that
somehow or another we should become human to these people. We are human beings and we
have children and we have lives and that we're not to be discounted. And that was our major goal
there, that we had to touch these people, we had to get inside of those human beings and to help
them to see other human beings, not adversaries, not those colored folks, we needed them to see
human beings who were vital and valuable. And that was our goal. And we discussed it and we
planned it and we had done it before and we knew what we were doing, and that was clear to our
attorneys, too.59
Pre-mediation. An overview of the pre-mediation phase of the process appears hi
Table 2. The primary objectives of this phase were to (a) agree to mediate, (b) choose
and legitimize representatives for each side, including the mediation team, (c) internally
develop objectives, and (d) begin to shape the process through interaction with the
mediation team as they assessed the conflict and representational issues, culminating in
the drafting of groundrules and an agenda for the process. Each of these elements was
mutually reinforcing, particularly from the perspective of local residents. By agreeing to
mediate, plaintiffs expressed a desire to move beyond punishment of an isolated incident
to an understanding of the dynamics which were prevalent throughout the entire
community and could lead to potentially more serious threats to tiieir safety. Such an
understanding would affect not only Swansea-Elyria but communities located near scores
of other railroad terminals, tanker storage sites, and other chemical operations. Further,
plaintiffs recognized and communicated through meetings with NTFC, CCC, and United
Swansea members that tangible benefits to the broader community could not be achieved
through litigation, as the cause of action in Neighbors v. Vulcan was linked to a limited
58 Memorandum Opinion and Order. Neighbors v. Vulcan. CA 95-D-2617 (N.Co. 1997).
59 Interview with Swansea resident, March 5,2002 in Swansea.
13
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set of possible court-imposed remedies pertaining to a specific site. That said, it was also
accepted that mediation would supplement and not replace adjudication of residents'
claims, should the former prove ineffective. As residents developed a shared sense of
mediation's potential, their actions communicated legitimacy to Vulcan and CDR
Associates, the non-profit mediation firm that was ultimately agreed upon.
Initially, the mediators sought to assess (through interviews and discussions with
each party) the appropriateness of representatives and their willingness to attempt
mediation and work with the proposed mediation team. This process culminated in the
convening of a first meeting and agreement over the appropriate venue and space,
drafting of groundrules that would guide conversation and the actions of parties during
and after each session, and drafting of an agenda for Day 1. The groundrules are
instructive in the context of resident reactions to the proposed process. Residents, during
pre-mediation forums, expressed their strong doubts about the possibility of settlement:
They were all in favor of it. They were also skeptical of it, because all of them were some older
folks hat had been doing it and they said we've been fighting these battles since the highways cut
the neighborhood in half. The railroads were expanding and different things happening. The
businesses that were expanding and the housing going away. The National Western Stock Show
was expanding and it took up half the housing stock out of Elyria and Elyria was almost left with
nothing as far as housing stock goes. So people were really, what they were saying was we're
glad that you're able to understand this stuff, because we're certainly not understanding a lot of
these things, they're too technical for us, and we really want you to take on the issue and take on
the fight but we want to say that you're spinning your wheels. We fought these battles with the
city, and it doesn't matter what you do. The people with the money and the city, and those are
usually in the same seat, they're going to do what they want to do anyway. So you're going to
spend a lot of time, get a lot of people excited, and you're going to end up with nothing.60
With the views of the broader community in mind, plaintiffs expected the mediation team
to provide a space in which historic power imbalances would be neutralized, at least in
part, while the strength of other options such as adjudication were preserved. Plaintiffs
had a good sense of the various tactics that could be used during negotiation and
importantly, which could be addressed through the structuring of the process and which
they would have to identify and counter on their own. The groundrules and agenda for
Day 1 provided some of the assurance plaintiffs were looking for: information would not
be shared or influence court proceedings, media interaction was limited to joint
statements, plaintiffs' desire to be understood and respected as human beings was agenda
item one, plaintiffs' need to understand the circumstances surrounding the incident was
agenda item two, attorneys, whose objectives at times ran counter to those of their clients,
were given a limited, clarifying and informational role, and expectations for resolution
were built around the need to address EPCRA and the residents' "sense of harm."
The meetings were scheduled for a small rental office space with breakout rooms
and secure telephone access to those with decision-making authority for Vulcan, after
suggestions for holding the sessions at CDR, CCC, or the basement of a local
Presbyterian church were rejected. The Spartan setting served to magnify expressions of
"righteous anger" by plaintiffs and blunt statements by defendants without attaching them
to certain symbols that non-neutral spaces might suggest. This encouraged the parties to
move from earlier stages of anger and defensiveness to an expression of shared interests,
60
Interview of Swansea resident, March 8,2002 in Swansea.
14
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which would begin toward the end of the first meeting. The absence of other parties such
as those involved in emergency planning and response activities limited distractions to
the central group dynamic at work: the transition from interests in acknowledgement,
accountability, and recognition, which were infused with strong emotions and historically
significant issues, to problem-solving and relationship-building based on linked issues
and forward-leaning time horizons.
Table 2. Neighbors v. Vulcan Mediation Elements: Pre-Mediation.
Initiation
60 day notice of intent to sue Executives, through counsel, Was conlaGied by Vulean
indicates that the Land and Land and Water attorneys after residents declined
Water Fund of the Rockies, after community was granted their suggestion of using
representing plaintiffs, "has a standing to sue under BPCRA; l&e Keystone Center
policy of pursuing negotiation suggested die Keystone
whenever possible" and Center, with who they had set
awites Vulcan to "discuss up CAP's in the past
with us your compliance with
the Act"
Representation
Executive Director, Cross Manager ofPublic Affairs, Mediation team consisting
Community Coalition and Chemicals Group of Vulean of two senlormediators
President, United Swansea Materials; Director, Logistics (one of whom was an
(attendance by 2-3 other in Chemicals Group; Counsel attorney)
plamtiffis who didn't actively (1 cotporate and 1 outside
participate); Counsel (2 counsel); on-site employee
attorneys) (present at first meeting only)
15
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Objectives
Vulcan has to "own" its
mistakes; has to team about
neighboring communities; has
to otffer a settlement;
settlement will NOT be
divided among plaintiffs (must
serve broader community);
settlement must specific about
what settlement Is for
Counsel: Add legitimacy to
cl
Protect reputation; protect
shareholder value by limiting
settlement value (potential
penalties were significant);
competence, aggressiveness
when necessary
representatives of the
community; (later) understand
why Vulcan's actions were
considered offensive and
inadequate
Counsel: Protect shareholder
value by arguing that Vulcan
had taken sufficient steps
following incident; protect
broader corporation from
precedents that would require
costly changes elsewhere
Explore possibility of
settlement without
transformation of clients
or their relationships;
provide sufficient time for
airing and understanding
of grievances
Mediation. The plaintiffs entered the mediation phase well-prepared to frame the
discussions around the need to redress "damage done to the community" while treating
the HCL spill and delays in evacuation and notification as symptoms of broader causes of
that damage. The challenge came in convincing Vulcan that their interests in addressing
wider-ranging conditions overlapped with the community's. Ironically, it was the early
discovery that Vulcan had decided to close the terminal in Swansea and leave the area,
and the company's rationale for doing so, that allowed the group to transition to future
relations and problem solving around community-industry dynamics and needs.
In the early 1980's, the facility in question employed two staff members.
Economic conditions led Vulcan to reduce its on-site staff to one terminal operator. In
the fall of 1994, Vulcan determined that the site was no longer economical, and that
leaving one staff person on site was not safe for the employee or the operation. In
addition, vandalism, theft of guard dogs, and shooting at the railroad cars were reported.
Vulcan declared the site unsafe and on February 2,1995 an action plan to close the site
61 Mediation notes recited during Interview with Mediator, March 7,2002 in Boulder.
16
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was put together. Less than two months later, the HCL incident occurred. It became
apparent early in the first mediation session that the concerns which led Vulcan to close
its operations were shared by local residents, who were also given substantial time,
without interruption, to offer their account of the community in general as well as the
accident.62
In the neighborhood association, a lot of concerns would come up. We started noticing that there
were a lot of things that were going on in the park that were changing. Our community was in a
big change, there were lots of folks that lived around there that their families had been there 20,30
years, and so people were quite concerned when we started hearing some of the things mat were
going on in the neighborhood and that led us to concerns that were concerns of the park. And
those were, that a lot of the old families were moving out and we were getting lots of new people.
And a lot of the new people coming in were Mexican nationals. And so we were getting a lot
more kids in the neighborhood, a lot more families into the neighborhood and the neighborhood
was growing quite rapidly. But with that, some of the things that they had done back home were
becoming evident that they were doing mat here as well. And a lot of that was guns. On Saturday
evenings, Friday evenings, five or six of the men would be sitting outside the house, just sitting
around drinking, and there were certain areas that are kind of isolated that are close to the tracks
that dead end, and lots of rental houses. So people living in those areas would be drinking in the
evening and later in the evening they would be a little bit drunk and we had a lot of reports of
gunfire going off, gunfire firing around the park area and at the ends of those dead end streets
adjacent to the train tracks.63
These concerns were linked to Vulcan's during the first mediation session by the
plaintiffs:
Companies like yours they come in, they plant down, they put up fences, they buy the dogs, and
it's a message to us of how bad are we. How awful are we. How horrible are we that we must be
locked out and have dogs in case we come near your site and that's the message mat you send.
And it's a bad message. You make no effort to know us. We're your neighbors for pete's sake.
You know, there are houses not two feet away from where this spill happened. People living there,
children living there, and you don't come over and say hello. You don't come to the
neighborhood association as other companies have and say we're so and so, mis is where we're
housed, we wanted to let you know about us. You don't come to the family center and say we
have jobs, we'd like to post it with you to employ people. You set down there with some of the
most dangerous chemicals in the world, put up your walls and buy your dogs, ignore us and then
are surprised when something like this happens, that we say we'll take you to court. What's the
surprise? There's no relationship. If you were to respect people, treat them with respect, you
would come to the neighborhood association meetings, we'd say let's see your emergency plan
and go over it, let's have an evacuation plan and go over it, let's make sure that we keep in contact,
you'd have maybe one or two folks from the community working there. We would have a
relationship so that when the accident happens we could look at each other and say hey, we know
how to deal with it. Then we'd sit down later and say how did the accident happen, how could it
be prevented. Not only would we not end up in court, we could learn from that, we could be in a
better position, but you totally discount us. "Well, you know we have heard a lot of things in this
neighborhood you know like gangs and the people that were shooting, whatever.. .Does this
neighborhood have troubles? You bet they do. Like any other neighborhood, especially low-
income neighborhoods. We have our share of gangs. People do steal, do they not? You bet they
do. And does that happen in every industrial area in this country? You bet it does. But you know,
62 The mediation team focused early discussion on "what the community looked like" apart from how they
were affected by the HCL spill, the residents' account of the spill, and Vulcan's account of what it was like
to operate the terminal and deal with the spill, ibid,
63 Supra note 59.
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the thing that's going on here is that you see us as the other, and we are not the other. Don't you
know that one of our greatest fears in life is that one of these gang members is gonna take a shot at
one of those tanker cars and it's gonna blow up?64
Accounts of the first session suggest that it was this linkage of facility operations to
neighborhood safety that led to considerations of how Vulcan could prevent such
occurrences in the future at other sites. Some suggest that Vulcan's initial response to the
possibility of residents helping to protect site operations from vandalism was in fact
hostile. Others say that there was a moment where both sides realized the extent to which
they were dependent upon one another, despite their previous lack of awareness of this
fact. In either case, this pivotal moment shifted the focus from historic problems to
improving community relations at other sites and protecting residents from adjacent
industries. Residents were well-prepared to discuss both issues and to offer solutions that
would form the basis for settlement of Neighbors v. Vulcan.
Vulcan's decision to close the terminal and the fact that the HCL spill was not an
ongoing threat shifted Vulcan's focus to other sites while freeing residents to focus on
broader community problems. After an initial offer which Vulcan had been authorized to
make to plaintiffs ($10,000) was resoundingly rejected, the parties began to draft
principles of settlement. Parties began to work under conditions of greater mutual respect,
which was encouraged by the limited role granted attorneys, parties' candid accounts of
living and working conditions, and Vulcan representatives' admissions of past errors
(made easier by the fact that these admissions had already been made in settling the
EPA's administrative action) and even apology for the entire incident. The principles
were:
1. The community should know what happened during the mediation
2, The community should know of Vulcan's apology in that it shows respect to the
people of the community
3. Information regarding what happened during the spill and any health impacts that
could result should be made clear to the community
4. Vulcan should have an opportunity to repair its reputation within the community
by being given access to the community
5, This experience should somehow inform other communities and be a model for
improving processes (preventive as well as emergency preparedness) that would
be helpful to both sides
6. An agreement that is seen as fair by both sides would include a dismissal of the
lawsuit with prejudice
7, The settlement agreement will require oversight. Dismissal of the lawsuit will
therefore include court oversight and enforcement
8. Parties should consider a supplemental environmental project as part of
settlement65
64 Supra note 58.
63 Mediation notes recited during Interview with Mediator, Supra note 60.
18
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At this point, residents revealed what was indeed a strong vision for a suitable remedy
under the final principle. In the early 1990's, the community had held a needs
assessment and a three day charette in order to draft a neighborhood plan for Swansea,
Coincidentally, the area near Vulcan's former operations was heavily dominated by
industry. At the comer of 51st and Steele Streets was the last piece of green space
(roughly two acres) in the area, behind which stood residential homes. Residents had
suggested that the parcels be converted to a neighborhood park so that a buffer zone
separating homes and industry could be created through use of shrubbery and fencing. In
addition, the City of
Denver had leased
land in North
Swansea to a
number of trucking
companies at
below-market rates.
Near the trucking
facilities lies a
mobile home park
that lacks even a
foot of green space
and at the time
housed 88 children.
The children were
forced to play in the
streets, which
continued to see heavy truck traffic. Plaintiffs made use of this story, in addition to a
wealth of materials, photos, and plans to argue for the need to acquire the 51st Street site
and convert it to a park. Their proposal included demographic data, information on land
use trends and toxics release data for the zip code, and a diagram of the proposed park
with two options for acquiring the site.66 Parties agreed to gather additional data between
the first and second mediation sessions, in order to more carefully consider the park
option.
Figure 3. Mobile Home Park in North Swansea
66
Cross Community Coalition, Swansea Community Park Project Proposal (no date).
19
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•»
Nt
uf
* .S~ _ ">
-*s~ •:• ,
<< , mff^jmn
• / -
M*I
1
1
-------
leveraged by the plaintiffs to seek grant and city council assistance. After both sides
presented their information regarding park feasibility and reported on their meetings with
outside people, Vulcan declared that it had a final offer to make:
Joy, who had the ear of the president of the Corporation, had parameters that she knew that she
could go, from one to the other. Well, I think it went up to [undisclosed amount]. And her
lawyers still were saying you have no need to do that, it would not be a good idea to do that, it
would set a bad precedent. It's a bad idea...And at some point, Joy just sat on the edge of her
chair and said do you know what, I'd like to offer you [undisclosed amount]. And you could hear
a pin. At which point everybody said let's take a break. And it was, she wanted to do it. She felt
as though what they had done had caused harm in a way that their lawyers couldn't get. She got it,
and she just wanted to do it, so she did it.67
Plaintiffs returned and accepted the offer, whereupon Vulcan asked for their help in
developing a blueprint for future community relations. The remainder of the meeting was
used to settle a disagreement over attorneys fees and to draft the specific language of the
Settlement Agreement, an Escrow Agreement, an Additional Settlement Agreement, and
a Stipulation of Dismissal of the litigation.68 These documents were finalized at a later
date and signed by all parties to the litigation. The major elements of the Settlement
Agreement are listed below:
67
Supra note 60.
68 Exhibits to Order. Neighbors v. Vulcan. CA-95-D-2617 (No.C. 1997).
21
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TableS. Neighbors v. Vulcan Settlement Elements
t > ,, Bfcmmit
Court has jurisdiction over the Parties and the subject matter of this action pursuant to EPCRA
Agreement applies to the parties, their directors, officers, employees, members, successors, and assigns
Before December 4,1997, Vulcan will deposit with an Escrow Agent of the Swansea Community Part
Project the sum of $125,000 to be used for purposes of purchasing an interest in and/or developing lane
to establish a public park or making other improvements to public lands for recreational purposes wimii
the Swarisea neighborhood
Details of specific expenditures of the Escrow Property will be determined by majority vote o
individuals comprising the PlaintMfe (CCC-one vote, NTFC-one vote, individual members of Plaiatifl
party-one vote); Escrow Agent must abide by the directions given by representatives of the Plaintiffs
Vulcan will reimburse Neighbors $35,000 for expenses, attorneys1 fees, an4 costs incurred in connectioi
with tile legal action
Parties will meet at the CCC together with Transcare State and Regional Coordinators to begin the
process of drafting protocols for ongoing work with fee community. Goals shall include providinj
guidance to industry for their work with other communities, as wll as guidance for how communities
might work together with industry using the factual backdrop of the action as an example
This agreement and the Additional Settlement Agreement constitute the entire agreement between th<
parties
This Agreement shall be binding upon and shall inure to Hie benefit of the Parties and their respectivi
successors and assigns
Implementation presented its own set of challenges, although the agreement was
rather straightforward. The CCC wrote a grant for $180,000 to cover the additional cost
of the land, which it had planned to do even before the agreement was reached. The
undisclosed sum sat in escrow for several years and accrued interest, leaving the
community in need of just $18,000 before they could purchase the property at fair market
value. Through the City Council, the CCC convinced the Parks and Recreation
22
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Committee to give them the remaining funds that they needed. The parcel has been
purchased, and the National Park Service is helping CCC and City brownfields workers
to determine if the site is contaminated. Amazingly, the site, located within an area that
is almost universally contaminated by some level of lead or arsenic, appears free from
these substances.69 Groundbreaking on the park will happen in the near future.
Meanwhile, plaintiffs and Vulcan worked to drafts Blueprint for Community
Relations and Involvement* a guide to community outreach that has been widely
distributed.70 The document includes detailed steps for companies just starting to
communicate with their host communities, including guiding principals for community
involvement that mirror many of the lessons learned during the mediation process.
Parties also made several presentations, to an annual meeting of the Society of
Professionals in Dispute Resolution, to senior attorneys for the Chemical Manufacturers
Association, and other smaller venues. Vulcan took at least some of the
recommendations listed hi the Blueprint seriously:
We have since shut down some terminals and re-evaluated some locations as a result of this
because we felt like there were potential risks that outweighed the benefit of having those and that
we wouldn't be able to do the kinds of things there that were needed to ensure that we were
basically not going to have a situation like this again, or if one happened that we would be able to
address it.. .Another thing I think is that we learned out of this, that companies need to do a better
job of figuring out who the stakeholders are and being more aggressive in seeking out problem
spots and frankly we had a lot of success under our belt with advisory panels but our model was
really limited to manufacturing sites and we - you just can't ever get complacent in that arena.71
Discussion. In communities such as Swansea-Elyria, multiple, overlapping
sources of environmental risk, and the timing required to address quality of life issues can
serve as sources of strength when grievances against a limited set of polluters are
addressed. The manner in which Neighbors v, Vulcan was settled suggests that
environmental justice organizations can and should consider, prepare for, and shape a
mediated process so that their comparative advantages are leveraged to the fullest extent
possible. These advantages include: (a) knowledge of community needs and the ability
to mobilize consent around new ideas and proposals, (b) an understanding of the
interconnectedness of environmental hazards, the dynamics behind their common
location within a given place, and ways in which they can be mitigated or reduced (c) an
intimate understanding of how common mistakes and accidents that are taken for granted
in industrial society affect people's daily lives, and (d) connections to local officials and
political leaders that may not be shared by industries, particularly those managed from
out of state. Traditional means of resolving environmental disputes (i.e., hearing
processes, adjudication) do not give community groups a chance to make use of these
advantages, because they concern a narrowly constructed set of questions of fact or law
that minimize the value of brainstorming, joint fact-finding, or inventiveness and restrict
parties to consideration of an isolated, ongoing incident. Pursuing environmental justice,
on the other hand, requires that attention be turned toward multiple sites, longer tune
69 Supra note 58.
70 Granado, L. (1997). A Blueprint for Community Relations and Involvement. Published jointly by the
Cross Community Coalition and Vulcan Chemicals.
71 Interview with Vulcan corporate official, Supra note 18.
23
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horizons and slow-moving processes of change that need to be set in motion. If carefully
structured, mediation can give community representatives a chance to think about and
address the broader challenges that will remain, regardless of the outcome of the matter at
hand.
To accomplish this in Neighbors v, Vulcan^ plaintiffs had to shape the process,
including the role of the mediators. This involved considerable preparation, including
years of assessing community needs and developing plans and proposals, with multiple
options for future site development before the dispute even materialized. It included the
development of strong networks to overlapping communities of interest (older residents
involved in the first wave of environmental struggles surrounding 1-70, residents involved
in organizing around the ASARCO/Globe site, neighborhood associations, and family
service providers) that could be assembled within a short period of time. It required
legitimation of their position as representatives of these overlapping communities and
proponents of solutions that would satisfy a broader set of interests than their own. And
it called for highly articulate leaders who could focus the agenda, groundrules. and
discussions on appreciating past events for the purpose of focusing on relationships and
remedies tied to cumulative effects of industry or prevention on a scale broader than the
site in question.
The overlapping concerns for site safety (protecting operations and lives), once
aired, marked this transition from appreciating past events to broader mitigation and
prevention work. It was the mediation space, beyond any actions of the mediation team,
that gave parties a chance to move in this direction. But while the mediation team did not
plan on transforming relationships between parties, it did work at the margins to ensure
that the parties' interests could eventually be addressed in a constructive manner:
attorneys were given a limited yet important role to play (information, party and process
legitimation when necessary), uninterrupted opportunities for the community to share its
story and prove its competence were scheduled and enforced, and once parties turned to
problem-solving, the mediators offered careful documentation and guidance during the
due diligence phase. Had the dispute involved more specific aspects of site operations,
the mediation team would have been responsible for controlling the pace of conversation
and making sure that all sides had access to technical assistance. Beyond this, the
community leaders were well aware of negotiation tactics and how to spot and defend
against them (i.e., anchoring what the other side expects they will receive by making a
first offer, tuning and location issues, preconditions to agreement). And they came
prepared to discuss solutions that were tied to their intimate knowledge of community
needs and political feasibility.
Of course, the unique circumstances of the case (Vulcan had closed the site and
there was no on-going threat from their tankers) may seem to suggest that there was no
other choice but to direct parties' attention elsewhere. Yet, it is equally true that the
community activists involved had only begun to scratch the surface in terms of possible
solutions that could have grown out of their comparative advantages. Note that the
ultimate solution, a park that would serve as a buffer zone, was tied to the clustering of
trucking operations, the specific needs of a mobile home, broader community buy-in and
willingness to assist, and broader concerns over industrial zoning in northeast Swansea
and the lack of open space. These pieces of a narrative that the residents constructed
around the proposed solution are but a few of the dozens that were raised during
24
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interviews. The activities of small metal shops and painting operations in the area, truck
traffic, use of the railroad tracks by other industries, terminal surveillance, access to
networks that could help in disseminating information during a release, sites that
remained open to future industrial development where transfer stations and incinerators
had already been defeated, and many others were also aired, and continue to linger in the
air, waiting to be skillfully attached to solutions that are forward-thinking and take
advantage of the different time horizons of the parties to a dispute (in this case,
immediate gains to Vulcan's understanding of community relations and prevention in
other communities were linked to delayed but meaningful gains to quality of life in
Swansea) Fitting these pieces together requires a flexibility and creativeness that
mediation can encourage.
FigureS. Site of Future Swansea Community Pare.
25
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Windows of Opportunity for Mediation in Swansea-Elyria, Colorado
PART II.
Had we had some opportunity to shape that mediation it would not have looked like it did. But
given that the situation was already predetermined, we have to be at the table. The only other
tiling that we could have done to change it would have been to not participate - Swansea Resident
Background. Environmental justice disputes add
distinct layers to existing regulatory, corporate, and
industry developments. Communities are increasingly
able to maneuver through these realms and understand the
extent to which each can contribute to or help resolve
risks to resident health and well-being. Yet, problems of
judging whether behavioral changes by any given firm
will yield noticeable improvements to quality of life at
different geographic scales and dealing with this
challenge within the context of multiple, overlapping,
existing processes can limit the effectiveness of mediation
in meeting a community's interests. As the communities
of Swansea and Elyria entered into a second mediation
regarding air emissions, they were given little time to
come to terms with these challenges.
The Conoco Petroleum Refinery72, located 1,5
miles northeast of Swansea in nearby Commerce City,
was not technically a neighbor, although many of the odor complaints received by the
state were from Swansea-Elyria.73 These complaints peaked in September, 1996 when a
disruption in refinery operations resulted in flaring that contained substantial amounts of
sulfur dioxide (SCh).74 Conoco would later be accused of violating the Federal Clean Air
Act by emitting sulfur dioxide and other compounds (potentially in excess of permit
limits) and flaring certain gasses in violation of permit conditions.75 Litigation was
Figure 6. Conoco Refinery
from Brighton Boulevard
72 The Conoco Refinery has the capacity to process approximately 57,500 bajrels of oil per day. The
refining process involves separating hydrocarbons from crude oil and converting them into products.
Crude oil, which contains a variety of toxins and impurities (such as sulfur), is first heated in a distillation
column. This process causes various gasses to rise through the distillation column where they cool down
and form liquids that move through piping and are used for various products (fractional distillation): heavy
oils condense at the lower level of the column and are used for domestic heating oil, lighter products gather
at the middle level and are used for gasoline and kerosene, and some are unable to condense and pass into a
vapor recovery unit. The latter are then processed through a process called cracking (the application of
either heat or chemicals), A number of toxic substances are released at various stages of the process, such
as volatile organic compounds like benzene, toluene, and xylene. Conoco ranked among the highest
producers of toxic air emissions in Colorado at the time of this study.
Lorraine Granado, a plaintiff and head of the Cross Community Coalition, lived five blocks from the
refinery with two sons at the time. Michael Maes, a plaintiff and head of United Swansea, also lived within
the area most immediately impacted by Conoco's violations.
74 Jerry Heyd, Refinery Manager, Conoco to Hugh Davidson, Air Pollution Control Division, CDPHE, RE:
Tri-County/APCD meetings with Conoco on August 13 and 29,1996, September 12,1996. ADD
75 Complaint, COPIRG Citizen Lobby. Lorraine Granado. and Michael Maes v. Conoco. Inc.. CA 98-30
(N.Co. 1998).
26
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initiated by the Colorado Public Interest Research Group (COPIRG), who had been
active in passing the Colorado Clean Air Act in 1992.76 The CO CAA required industries
to more fully disclose their annual emissions through use of Air Pollution Emission
Notices (APEN's)77, which went above and beyond the EPA's Toxics Release Inventory
and gave COPIRG and public interest attorneys a clear suspicion that Conoco was
illegally venting sulfur dioxide. The Swansea-Elyria communities became involved as
joint plaintiffs with COPIRG on a citizen suit under the CAA.
The Problem. COPIRG, an experienced public advocacy organization, had begun
to look at stationary sources of air pollution across the state in 1990.78 They conducted
an early assessment of the CAA as it was federally reauthorized in 1990, determining
what percentage of emitting sources would be cut through federal statutes. Conoco
appeared in the early 1990's in their analyses of the Denver metropolitan area as one of
the major sources of air pollution, particularly criteria air pollutants.79 At the time, its
emissions were dwarfed by those of power plants such as Public Service Company (now
Excel).80 COPIRG worked with Environmental Defense and the Land and Water Fund of
the Rockies to reach a voluntary agreement with Public Service where the company
would receive tax credits for pollution control equipment. This left oil refineries as the
largest source of sulfur dioxide and nitrogen oxide emissions in the greater Denver area.
An attorney at the Land and Water Fund of the Rockies, based in Boulder, CO,
was also investigating the refinery's activities,81 His research, based in large part on a
review of public documents such as facility permits, focused on the refinery's sulfur
recovery operations.
Conoco had two different pollution control devices, #1 and #2. And the refinery according to
Conoco needs to operate 24 hours a day, 365 days a year, and yet those pollution control devices
need to be shut down for maintenance periodically and sometimes it's for a long period of time.
So you would think mat OK, it's a redundant system. If you shut down one, then you reroute all
the gasses through the second one and when you shut down two you reroute all the gasses through
one. For some reason, whether it was one of the devices took liquid as opposed to gas, when they
shut down one of these they could not reroute the gasses to the other one, so instead they routed
the gasses to a central flare. Now central flaring is something that all refineries have the ability to
do for emergency situations but it's a terrible form of releasing. Because flaring doesn't have any
pollution control capturing. So you're venting the worst of the worst. So there was significant
flaring going on at Conoco when they'd shut the facility.82
This problem substantially impacted the refinery's sulfur emissions. Specifically, the
Conoco refinery contained two units (sulfur recovery units, or SRLTs) where a catalyst is
used to break hydrogen sulfide (which is formed when sulfur is removed from crude oil)
into elemental sulfur which then solidifies and can be sold. Not all hydrogen sulfide is
76 Air campaign seeks ballot spot, Rocky Mountain News, March 12,1992; Tough clean-air bill wins
approval, Rocky Mountain News* May 6,1992.
See Concept A-l: Elements of a Colorado Air Toxics Strategy, COPIRG Discussion Draft, April 14,
1992; Overview of Hazardous Waste Pollutant APEN Reporting, COPIRG, Denver, CO.
78 Interview with former COPIRG President, March 4,2002, in Denver.
79 Ibid.
80 In 1998, Public Service Company released 18,228 tons of sulfur dioxide while Conoco released 2,498
tons into the atmosphere.
81 Interview with former Attorney, Land and Water Fund of the Rockies, March 6,2002, in Boulder.
27
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converted. Some is sent to a "tail gas incinerator" and either flared or burned. This
results in a release of sulfur dioxide into the atmosphere during normal operations.
Conoco was issued a permit in 1991 to construct and operate a second SRU in order to
handle acid gas from a new Gas Oil Hydrodesulrurizer (GOHDS) as well as sour water
stripping derivatives.83 This structural change was part of a larger project to produce low
sulfur diesel fuel.84 The unit experienced operational difficulties, including a period in
April 1996 where it was shut down for 20 days. When the SRU shut down, a gas stream
was sent to a flare where it generated SO2. Venting SO2 into the atmosphere posed a
nuisance and potential hearth problems to neighboring communities.
Conoco's SRU #2 permit limited the emissions of SO2 to 85 tons per year and
19.6 pounds per hour, and required "all gas fixrni the sour water stripper shall be
processed through the Claus sulfur recovery unit."85 During maintenance, however,
Conoco would shut down its GOHDS while continuing to operate. This would continue
to generate a sour water stripper gas stream (containing an estimated 5 tons/day of SO2)
that would be sent to a flare and vented into the atmosphere.86 The attorney documented
the following incidents of SRU#2 shutdowns and sour water stripper flarings between
July 1995 and July 1996 as part of his preliminary analysis:
Table 4. Potential Permit Violations between July 1995 and 1996, Conoco Refinery.87
Duration thrs.)
46,25 416,67
7 416.67
<"' " " itfll" ' •,., - ' 416,67 •
7.5 416.67
October 25,1995
December 10. t995
December 20,1995
January 21,1096
"JittMi^MW^
February 23,1996
March 23,1996
April 3,1996
May 14,1996
7,4
. 4
U
.5
457.75
416.67
m.6
416.67
208.34
r^w**
416.67
9.64
1.46
1.56
,ft8@
1.54
Xfcfll
2.29
0.05
95.37
June 14, 1996
125
0,02
83 State of Colorado Department of Health, Air Pollution Control Division, Emission Permit 9 IAD 180-3
issued to Conoco, Inc. (initial approval).
84 Jerry Heyd, Refinery Manager to Bob Jorgenson, Colorado Department of Health, Re: Claus Sulfur
Recovery Unit NSPS Subpart J Applicability, September 24,1993.
"Ibid
86 CDPHE estimates can be found in Robert Jorgenson to Dave Ouimette Re: Conoco problems with
Sulfur Plants, Inter-Office Communication, October 17,1996.
87 Adapted from Randall Weiner to COPIRG Citizen Lobby, Proposed Litigation, October 5,1997.
28
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COPIRG joined with the Land and Water Fund attorney to investigate a possible
suit under the state and federal Clean Air Acts, They also sought out members of the
affected community:
We were aware of the concerns going on simultaneously about large numbers of companies
operating in that area so we made contact with the director of the CCC and spoke with her about
this issue and brought her in to the information that we had access to as well as the president of the
local neighborhood association. So we, they had expressed some concern, there was some
information in the file about concerns, basically neighbors smelling, I mean the oil refineries
aren't particularly sweet smelling to begin with, but the residents were reporting that there were
occasionally very nasty smells coming from the neighborhood, and we began to put two and two
together that these were probably the occurrences of when there was large-scale venting
• ftit
occurring.
By 1996, residents sensed that certain refinery emissions were increasing substantially
from the norm, although they were not aware of the underlying causes;
We didn't know what was going on over mere, but we would readily complain because a lot of
times when we would see mat big flame at night or during the day and at the same time you would
start getting the smells from the refinery. And you would smell it heavily in the neighborhood.
And so we were complaining about a lot of that sniff at the time just like we had constantly been
complaining for years and years and years about the rendering plant. Some days you don't even
notice it, but then in the summer times or when the wind's just right it'll gank you, I mean it's a
foul, foul smell. It's not unheard of somebody getting a whiff of that and starting to vomit.89
As COPIRG, the attorney, and local residents developed an understanding of
Conoco's violations, broader regulatory developments began to shape how they would
eventually resolve litigation over SC>2 emissions. Federal environmental statutes such as
the Clean Air Act contain provisions that allow the EPA to place parts of the programs
under state control.90 This allows the EPA to avoid running programs in all 50 states, a
task for which it lacks the necessary resources.91 In the mid-90's, the Colorado
Department of Public Health and Environment worked on meeting EPA delegation
requirements, and the federal EPA began to promulgate monitoring, reporting, and
enforcement requirements for state implementation (which, in the opinion of COPIRG
yielded a more collaborative Notice of Violation policy given the CDPHE's agency
culture).92 By 1998, the state of Colorado was given interim approval for delegation of
the EPA's permitting authorities.93 The issue of delegated environmental enforcement is
closely linked to Colorado's comparatively strong self-audit policy enacted by the state
legislature in 1997.94 The self-audit policy in Colorado allows "a privilege for self-
88 Supra note 78.
89 Interview with Swansea resident, March 8,2002, in Swansea.
90 See Clean Air Act, 40 C.F.R. Part 70.
91 Hawks, R. (1998). Environmental self-audit privilege and immunity: Aid to enforcement or polluter
protection? Arizona State Law Journal, 30: 235;Markell, D. (2000). The role of deterrence-based
enforcement in a "reinvented" state/federal relationship: The divide between theory and reality. Harvard
Environmental Law Review, 24: 1.
9242U.S.C. §766la.
93 § 25-7-1 \ I(2Xc), C.R.S. (1998).
94 Colo. Rev. Stat. 13-25-126.5(3) (1997).
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critical analysis done in a voluntaiy self-evaluation of a [company's] environmental
compliance."95 The Colorado state legislature, when enacting this legislation, stated:
The general assembly hereby finds and declares that protection of the environment is enhanced by
the public's voluntary compliance with environmental laws and that the public will benefit from
incentives to identify and remedy environmental compliance issues. It is further declared that
limited expansion of the protection against disclosure will encourage such voluntary compliance
and improve environmental quality and that the voluntary provisions of this act will not inhibit the
exercise of the regulatory authority of those entrusted with protecting our environment.96
Colorado's statutory privilege for environmental self-evaluation was passed in response
to a 1993 case involving Coors Brewing Company, which was fined over $1 million by
the Colorado Department of Health after disclosing volatile organic compound
emissions.97 The company was not required to disclose the information, and had learned
of the emissions through its own voluntary study. The state statute went beyond mere
privilege and relaxed requirements that reporting entities use prompt remediation of any
contamination that they discovered. The federal EPA and the Department of Justice have
actively opposed the self-audit policy and expressed the opinion that Colorado can no
longer meet delegation requirements because of it. One of the mechanisms for the EPA
to retain its authority over delegated powers, overfiling, was carried out as part of the
EPA's attempt to compensate for the state's lack of sufficient use of its enforcement
powers. Overfiling occurs when the EPA begins an enforcement action regarding a
program that has been delegated to a state.98 Residents* concerns over Conoco's sulfur
emissions would be resolved in large part through the settlement of an EPA overfiling.
The Dispute. Plaintiffs in the Vulcan litigation were able to file suit in a relative
vacuum: questions of agency responsibilities for emergency preparedness were being
discussed and to some degree resolved in ways that did not impact the litigation or how it
was resolved. The citizen suit against Conoco, on the other hand, was shaped in large
part by processes beyond plaintiffs' control. Before COPIRG and Swansea residents
filed a citizen suit, EPA Region VIII and the CDPHE stepped in, initiating what the
former President of COPIRG would refer to as "four games of chess" that were played
and solved nearly simultaneously among federal, state, and local interests:
1. EPA Region VIII overfiled on previous CDPHE enforcement actions on
March 18,1997, claiming that in a previous consent order between the state
and Conoco the state did not adequately interpret regulations concerning
inspections, record-keeping, hazardous waste discharges, notices to the state,
and penalties associated with certain counts of RCRA violations;99
93 Formal Opinion of Gale Norton, Colorado Attorney General, No. 98-3 AG Alpha No, HL WQ AGAVQ,
December 1,1998.
96 Colo. Rev. State. 13-25-126.5(1) (1997).
97 S1.05 Million Fine Against Coors May Deter Corporate Environmental Audits, Environment Reporter,
24(13): 570, July 30,1993.
98 Zahren, £. (2000). Overfiling under federalism: Federal nipping at state heels to protect the environment.
Emory University School of Law, 49: 373.
99 Complaint, Compliance Order, and Notice of Opportunity for Hearing, RCRA (3008) VIII-97-03, in the
matter of Conoco, Inc., March 18,1997.
30
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2. The state filed Compliance Advisories under RCRA and the Colorado
Hazardous Waste Act, regarding the presence of benzene in one of Conoco's
wells and the contamination of groundwater.100 It also continued to work with
Conoco on adjustments to its construction permits;
3. COPIRG and local residents filed a citizen's suit under Section 304 of the
Clean Air Act, focusing on the fact that Conoco had failed to detect violations
for five years as it had not properly monitored its S02 emissions;101 and
4. Conoco continued to adapt to a series of regulatory and site-specific changes,
while working with the CDPHE to ensure that its operations were in line with
permit specifications. The company stopped producing leaded gas at its
Commerce refinery in 1990, sought, announced, and then scrapped a proposed
joint venture with the Colorado Refinery Company to share the costs of
complying with more stringent environmental controls (requiring .05% sulfur
diesel fuel by October 1993), addressed the reengineering of a device (the '
grubbs manifold) that caused the death of a worker who was cleaning a
reactor in the hydrosulfurization unit, and faced budgetary limits to
expenditures for on-site continuous emissions monitoring and sought to
improve their control over fugitive emissions, two areas of concern that would
be addressed in subsequent consent orders with the Justice Department.
Table 5 (See appendix) illustrates the progression of each of the above legal and
organizational developments.
EPA's RCRA overfiling was both a part of its response to the state's audit privilege
law and a result of EPA Region VIIFs longstanding attempt to work with the state to enforce
hazardous waste regulations. The EPA and the state engaged in joint inspections of the
refinery in March and April of 1992. The state cited violations found during the inspection
in a Compliance Order against Conoco. The Order required compliance within 45 clays and
required actions similar to what the state had called for in 1985. In December 1995, another
inspection took place, unearthing violations that mirrored those found in 1985 and 1992. The
Complaint lodged in 1997 amounted to a sprawling list of violations, from faulty
recordkeeping to storage and disposal without a permit. The Complaint prompted Conoco to
file two motions for accelerated decision, claiming that in their rush to undermine the state's
statutory authority the EPA failed to take a proper inventory of Conoco's inspection
records.102
While the CDPHE was arguably sub-par in its enforcement of certain RCRA
violations, it was actively involved in discussing whether the refinery was required to
include "routine maintenance" in its APEN emissions estimates. Conoco claimed that
process unit turnarounds, which resulted in substantial increases in SOa emissions, were
100 Compliance Order on Consent, 98-08-07-02, RCRA (2008)-VHI-98-03, In the matter of Conoco, Inc.,
August?, 1998.
101 Complaint, COPIRG Citizen Lobby. Lorraine Granado. and Michael Maes v. Conoco. Inc.. CA 98-30
(N. Co. 1998).
102 Conoco, Inc.'s First Motion for Accelerated Decision, No. 97-03 In the matter of Conoco, Inc., June 6,
1997; Conoco, Inc.'s Second Motion for Accelerated Decision, No. 97-03 In the matter of Conoco, Inc.,
June 6,1997.
31
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not distinct from start-ups, shutdowns, and malfunctions and should not be included.103
In August, 1996, CDPHE requested that Conoco provide the Air Pollution Control
Division a record of all incidents where acid gas or sour water stripper offgas was
combusted in the main flare since June, 1993. The information was requested in 12
month segments, suggesting the agency was investigating when permitted levels were
exceeded.104 The CDPHE was also actively engaged in a separate RCRA action
regarding hazardous substances and waste material found to be migrating from the
facility into groundwater and nearby creeks and wells. Compliance Advisories were
issued to Conoco in February and August, 1997.105 Both the EPA Region VIII and
CDPHE were in the process of resolving Compliance Advisories with Conoco when
citizens filed suit under the Clean Air Act.
The citizen suit was planned well before the two resident-plaintiffs were aware of
the legal issues involved, although residents arguably assisted COPIRG and the lead
attorney in determining the severity of various malfunctions at the facility. The citizen
suit was brought under the Federal Clean Air Act for Conoco's alleged sulfur dioxide
emissions.106 The problem, according to the original complaint, began when Conoco
installed a second SRU. The unit malfunctioned on numerous occasions, causing Conoco
to perform maintenance while diverting gas to its main flare. In addition to alleged
violations of permit emissions requirements, plaintiffs alleged that continuous monitoring
and recording of concentrations of sulfur dioxide discharged into the atmosphere was not
taking place. Conoco's lack of a continuous monitoring instrument was one of three
causes of action for the citizen suit (the final being Conoco's failure to process all gas
from the sour water stripper in the SRU), Relief sought included declaratory judgment, a
compliance order (that would include monitoring), penalties of $27,500 per day for each
violation under the CAA* and $100,000 for beneficial mitigation projects. COPIRG
asked two of the residents involved in the Vulcan Materials citizen suit to join them as
plaintiffs in the case, and the competing focus of the two groups increased the complexity
of an already challenging dispute. The community representatives focused on
particularized impacts to local residents and the need for monitoring and resident
notification, while the state-wide organization sought precedent-setting results at the level
of construction permitting. Members of Commerce City neighborhood associations were
not asked to involve themselves in the litigation or the mediation process that followed.
Conoco Adapts. Conoco sought to adapt to each of the above developments
through the efforts of managers, engineers, and environmental professionals. Conoco
responded to new corporate objectives, pollution control challenges, or regulatory or
permit changes through adjustments in two directions. First, new objectives were tied to
103 Inter-office communication from Robert Jorgenson to Dave Ouimette of CDPHE RE: Conoco problems
with the sulfur plants, October 17,1996; Jay Christopher, Air Program Leader, Conoco to Dave Ouimette,
Air Pollution Control Division, CDPHE RE: Conoco Denver refinery, SO2 issues, March 20,1997.
104 Jerry Heyd, Refinery Manager to Hugh Davidson, Air Pollution Control Division, Re: Tri-
county/APCD Meetings with Conoco on August 13 and August 29,1996, September 12,1996.
105 Compliance Order on Consent Number 98-08-07-02, RCRA (3008)-VIH-98-03, In the matter of Conoco,
Inc., August 7,1998.
106 Supra note 101.
107 This section was adopted from Interview of Environmental Director, Conoco Refinery, March 7,2001 in
Commerce City and Interview of Air Program Leader, Conoco Refinery, March 22,2001 via telephone.
32
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specific roles and personnel from upper management through various incentives. Second,
middle management used data in what is called the "plant management system" to track
emissions points (80-85 in all), respond to "upticks" and regulatory exceedances, carry
out trend, incident, and root cause analyses, and propose changes that accounted for
budgetary constraints, systems effects, and broader plant optimization goals. The two
directions often intersected, particularly within a given refinery's various emissions
programs (i.e., Air Program) and broader Environment, Health, and Safety management.
These streams of adjustment, adaptation, and innovation were in motion long before the
filing ofCOPIRG v. Conoco, and provide valuable information on the feasibility, timing,
and potential effectiveness of various options for source reduction.
Since 1990, environmental managers at the refinery had been working on nine
environmental initiatives instituted by Conoco upper management, including a pledge to
reduce toxic air emissions and hazardous solid waste significantly beyond existing legal
requirements. Efforts to adapt to such objectives are limited by whatever information is
available and the ability to process and interpret the data. For example, sulfur, which is
allowed in finished products in varying (and over time decreasing) amounts, is not
uniformly monitored at the refinery, as a patchwork of regulations guide the facility's
tracking of various chemicals:
Environmental regulations apply to specific pieces of equipment, so if your piece of equipment is
covered by a specific regulation that requires a certain kind of monitoring that's what you do. So,
for example, I talked about the heaters and boilers we have, and there's a requirement that the fuel
that you burn, if you mink of them as big gas stoves almost, not to be too simplified, but if you
think about it, we've got dozens of big gas stoves all over the place, we have one monitor that
measures the hydrogen sulfide in that gas that goes to every burner, and that's a continuous
emission monitor. And we have requirements on the limit of hydrogen sulfide we can have in that
monitor, or have in that gas hi any period of time. So we get a continuous readout. If the monitor
foils for some reason, then we have to take other samples and get other readings so that even if the
monitor is not working we have to prove that we stayed in compliance. And then we have a
continuous emission monitor, when I mentioned earlier all of the changes we had to make in the
early 1990's to get the sulfur out, we put in a process that helps us process the sulfur, and it has a
continuous emission monitor for our sulfur dioxide concentration in that. The rest of our facility
now, because we haven't made the kind of changes mat require the emissions monitors, we use
what are called AP-42 factors. The EPA has said if you process this much crude oil through a
certain kind of unit, this is the factor you use to estimate your emissions108
It depends on the units involved. There's multiple places where we have sulfur dioxide emissions.
There's one that has a continuous monitor on it. There's one that's not yet been required. We
have two sulfur recovery units. One of those is continuously monitored right now. The other one
which is an older one had not triggered the requirement to do so, but under the national consent
decrees [lodged after the settlement of COPIRG v. Conoco] will. And it will have a continuous
monitor on that. And there are other sulfur dioxide sources in the plant as well. And some are
monitored more frequently, some less, a lot of that dependent on regulatory requirements109
Monitoring other sources of environmental contamination, such as particulate matter and
fugitive emissions and flaring, poses completely different sets of challenges. For each of
these areas of emissions, environmental managers work in teams (such as the Reliability
Group and the Refinery Leadership Team) to (a) stay within permit requirements, (b)
108 Supra note 107 (Environmental Director)
109 Supra note 107 (Air Program Manager)
33
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avoid upsets and reduce the unplanned release of certain chemicals, and (c) increase plant
efficiency. Given the fact that the refinery process is continuous throughout the year,
crude oil and its various toxicants and impurities are flowing through the system every
hour of every day. Uncontrolled or unplanned releases, resulting because of electrical or
system component failure, can account for a significant percentage of overall emissions.
An upset that lasts 10-20 minutes, where certain streams are sent to a flare to avoid
overpressuring vessels or spilling hazardous chemicals, can yield more emissions than
normal operations for 1-2 days. Routine maintenance factors strongly in attempts to
achieve reliability and emissions reductions. A weekly incident review process involves
a formal management review of incidents and in the case of large-scale incidents a root
cause failure analyses. Under the recent consent decree between Conoco and the
Department of Justice, the facility must comply with strict guidelines for when to trigger
a root cause failure analysis (for example, releases of more than 500 lbs./day of sulfur
dioxide).110
Communicating what is learned through failure analysis, and assigning new roles
or incentives to engineering groups, operators (who work on four separate shifts under
contract), mechanical personnel, and planners who determine how the facility should be
run is a challenging task. Equally daunting is the need to target cost-effectiveness across
the universe of a facility's boilers, valves, pumps, flanges, and other pieces of equipment,
estimate the effects of any changes on the system as a whole, and propose changes that
will remain within projected budget allocations or convince upper management of their
need.
The process engineers are kind of the ones sitting out there saying how can I run this unit better?
What can we do that can create an advantage for us someplace? And so they're by nature looking
out ahead and I think that's the guys who can do that. And the other one here probably who has a
really good long-term and kind of how does it all fit together is the optimization leader... The
barrier is getting projects to be viewed as cost-effective and that might not be at the site level, it
may be at a higher level than that. I mean there's people look at a project, and a as a company
you've gotta make money. And so that ultimately sits out there behind things, and people have
always struggled with the concept of does an environmental project make money and I actually
think that there's more acceptance now that they do. But the payback's different than what the
people are normally used to looking for. It might be indirect. Traditionally, from an engineering
perspective, people would look at a project and they'd say if we do this then we can produce x
amount more gasoline and that means we make that much money, so you compare that to the
original cost of the project and you can say yeah, this is justified. And the environmental projects
don't have the same direct payback to them. Sometimes they are cost-avoidance: if you do this
you won't get a penalty. Sometimes, and then there's the grey, it's really hard to quantify
community acceptance."1
The challenges of cost-effectiveness, mining and interpreting thousands of data points,
coordinating among diverse work groups, operators, engineers, and upper management,
and communicating new goals and tasks to over 200 employees on-site are indeed
daunting. At the same time, they offer opportunities for those seeking to enforce the
permits and regulations that drive much of the refinery's environmental management
work. Indeed, the fact that citizen concerns over SO2 emissions could be resolved by
110 Notice of Lodging of Consent Decree under the Clean Air Act, Federal Register, 67(17); 3735 (January
25,2002).
111
Supra note 107 (Air Program Director).
34
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finding a practical or engineering solution rather than a legal finding of fact encouraged
settlement discussions in the first place. But once discussions commenced around
Conoco's proposed solutions to SO2 emissions, there is little evidence that the mediation
process offered a full appreciation of how plaintiffs could shape discussions around
Conoco's broader attempts to address sulfur emissions in order to address the company's
environmental management challenges. Nor was it clear that EPA Region VIII, the
Justice Department (involved in settlement negotiations with a significant percentage of
the nation's refinery operations at the time), or plaintiffs had figured out an appropriate
division of labor to maximize Conoco's promised reductions in emissions more broadly.
Lacking broader coordination among these groups, Conoco developed a response to
EPA's RCRA action that served as the primary driver behind the mediated resolution of
the citizen suit.
Elements of Dispute Resolution Process. As indicated in Table 2, the citizen suit
was filed after the RCRA actions were commenced by EPA Region VIII and CDPHE.
Plaintiffs gave notice of violations in the citizen suit on November 3,1997.112 EPA
Region VIII and Conoco had been engaged in an alternative dispute resolution process
,th
facilitated by an administrative law judge since June 30 1997. By September 2 , the
parties to the EPA RCRA action reportedly had "developed some reasonable possibilities
for settlement that remain to be explored."114 The parties' tone changed a month later,
when they recommended termination of the ADR process.115 Two weeks after plaintiffs
in COPIRG et al. v. Conoco gave notice of their intent to sue, Region VIII and Conoco
made a joint request for a stay of litigation.! 16 Parties believe that it is at this point that
Conoco began to contemplate and design a settlement that would satisfy the demands of
Region VIII, COPIRG, residents, and the CDPHE as expressed in the RCRA action, the
citizen suit, and state activities such as discussions over permitting of the #2 SRU (see
Table 2). Court records confirm that two months after a stay was granted for the RCRA
matter, parties began to reach a "settlement in principle" that included a supplemental
environmental project (SEP), the magnitude of which "may impact other issues currently
being discussed by the parties outside the context of this matter."117 Less than a month
following the RCRA "settlement in principle," parties to COPIRG v. Conoco began to
meet under the direction of a mediator to consider the "Conoco Denver Refinery Sulfur
Project Presentation."118 Importantly, parties to the EPA RCRA action had to request
motions for extension of time, and were given several deadlines for submitting an
executed Consent Agreement to the court.119 Parties to the citizen suit, particularly
112 Notice of Intent to File Suit, COPIRG Citizen Lobby. Lorraine Granado. and Michael Maes v. Conoco.
Inc.. CA 98-03 (No. Co 1997)
113 Notice from ADR Judge, RCRA (3008) VIII-97-03, In the.matter of Conoco, Inc., July 2, 1997.
114 sept 2 - reasonable
115 Report Recommending Termination of ADR Process, RCRA (3008) VIII-97-03, In the matter of
Conoco, Inc., October 1,1997.
116 Joint Request for Stay of Litigation, RCRA (3008) VIII-97-03, In the matter of Conoco, Inc., November
18, 1997.
117 Complainant's Status Report and Request for an Extension of Time, RCRA (3008) VIII-97-03, In the
matter of Conoco, Inc., January 22,1998.
118 Meeting Notice, Conoco Denver Refinery Sulfur Project Presentation, February 17,1998,9:00 a,m.
119 Orders Granting Exension, RCRA (3008) VIII-97-03, In the matter of Conoco, Inc.: April 15, 1997,
June 19,1997, January 22, 1998, and March 17,1998.
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resident-plaintiffe, thus entered settlement negotiations after Conoco had begun to try to
link settlements in the two cases and the court had set tight deadlines relevant to such
linkage. Conoco would ultimately resolve the above two actions as well as CDPHE's
RCRA action over groundwater contamination with essentially the same Supplemental
Environmental Project.
Pre-mediation. The district court hearing COPIRG v. Conoco tried to order the
parties to attempt settlement negotiations in January, 1998 (the judge ordered the
scheduling of a settlement conference to be presided over by a magistrate judge in early
February). Parties did not seem particularly interested in following the judge's timeline
(they filed a joint motion to vacate the judge's scheduling orders), and instead continued
discussions with a mediator whom they had selected jointly (although residents did not
have any input to this process).120 Conoco had already begun to focus on an overarching
settlement to cover the citizen suit and RCRA action. Plaintiffs to the citizen suit, on the
other hand, approached negotiations with conflicting interests. While plaintiffs
" eventually coalesced around seeking refinery process changes, the residents entered the
mediation phase in order to gain assurances of reduced flaring and emissions,
understanding of the risks associated with sulfur dioxide and other chemicals released,
and the ability to educate other residents of impacted communities of the risks posed by
the facility. Compare this with COPIRG's interests in source reduction as well as setting
precedent around specific permitting and broader regulatory concerns:
We came in with an agenda that we had, that we are the victims of what's going on over here and
it needs to be fixed not because of your profits or not because of anything else but that we're
overburdened, and that's been our story over here is that we are the center of everything and we're
overburdened by everything from all across the city. People drive into the city to work, we get the
fumes from their cars. They need more highways, they come right through our neighborhood.
The trains, people want to move downtown, they need a place to switch the trains and store the
trains, we get them in our backyard. I think COPIRG stuck pretty much to their stuff and we
jumped on them for things that we needed. We needed the assurance that the flare-ups wouldn't
keep going up, we wanted an understanding of what was being released in all of those releases, we
wanted an understanding of what the health effects would be from the things that we were
breathing from that area, and that just the assurances that those would be reduced or stopped.121
We were trying to get to the "bubble," and that is tell us your total emissions as the plan and now
let's talk about what strategies would it take for you to actually prevent the pollution in the first
place. And we started inquiring about changes in the production process. So I think the fact that
we brought a source reduction, pollution prevention orientation was very important to negotiations.
Institutionally both ourselves and I think the community groups had an interest in saying, we
would like to see how you could reduce emissions.122
One of the mediator's tasks was to justify representation of all interests that could either
influence or be affected by the outcome of any settlement of COPIRG v. Conoco.
Assuming the alleged violations were true, the mediator assessed whether plaintiffs*
interests, if obtained, would benefit "others that were similarly situated" or part of the
120 Joint Motion to Vacate Scheduling Orders, COPIRG Citizen Lobby. Loraine Granada, and Michael
Maes v. Conoco. Inc.. CA 98-N-30 (N. Co 1998).
121 Supra note 89.
122
Supra note 78.
36
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I'll
same class. Because the mediator could not identify any proposed solutions to sulfur
emissions that could prove detrimental of the broader community if implemented, he
chose not to broaden the mediated discussions beyond the parties to the suit. The
mediator was responsible for trying to align the interests of the plaintiffs, whose interests
did not entirely overlap as they commenced discussions with a company that was already
in the process of justifying proposed process changes to the EPA Region VIII. Table 6
provides the premediation elements ofCOPIRG v. Conoco.
Table 6. COPIRG v. Conoco Mediation Elements: Pre-Mediation.
<-=H2imfttT ' , sRegftg8m$" *--\ . -gQpi&ti - 'Qfrnpctf-r . -, MtgMr-t '
Initiation Informed of Agreed to attempt to Agreed to attempt to Contacted by counsel
discussions between reach settlement leach settlement for plaintiffs and
senior counsel for
COHRO and
Conoco that had led
to desire to reach
settlement
Conoco
«*• *
Representation President of CCC; Colorado Public Plant manager; senior Environmental
President of United Interest Research counsel, and attorney hired jointly
Swansea (counsel - Group President, environmental by parties
same as COP1RG) counsel manager
123
Interview of Mediator, April 4,2002 via telephone.
37
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Objectives
Convince Conoco
to make necessary
changes to reduce
their sulfur dioxide
emissions; wanted
to improve
Conoco's practices,
not their image;
wanted assurance
that flare-ups
wouldn't continue;
understanding of
what was being
released; build
relationships;
pursue monitoring
technologies for
advanced warning
of releases; set
precedent for other
communfyy-
corporate relations
Focus attention on
serious
environmental
concern; take away
economic incentive
for Conoco to violate
the laws in question;
include & financial
component thai
would go toward
broader
environmental
benefits; settlement
goes to a third party
(not spent by the
company or
COPlRG);set
precedent for other
statewide litigation
First phase of
meetings:
demonstrate that
Conoco Is operating
within parameters of
relevant permits
Second phase:
determine how
interests of plaintiffs
could be build into a
settlement that also
addresses the RCRA
action; work with
community on an
environmental
project; develop more
productive relations;
improve
efficiency/legitimacy
of refinery
operations; be Viewed
as a good citizen
Help panics reach
settlement that
underlying interests
Mediation. The mediation commenced with a meeting at the refinery where
parties considered a presentation of Conoco's proposed sulfur project. In addition to
proposed structural changes, the presentation included a "Pollution Prevention Progress
Report" outlining the refinery's goals for emissions reductions: 5% per year for TRI,
criteria air (including sulfur), and hazardous waste emissions, using 1993 as a base year.
Also listed as facility-wide goals were the improvement of energy utilization and
reliability, documentation of operating standards, enhanced environmental training for all
employees, clear roles and accountability for employees, and improved emergency
preparedness.
Formally, the mediation began less than a month later (March 10,1998), at a
preliminary meeting where parties discussed (a) an agenda, (b) the objectives of the
mediation, (c) groundrules for the process, (d) a timeframe for completion, and (e) the
factual background of the controversy.124 The scope of settlement discussions was
124 Draft Settlement Discussions between COPIRG and Conoco, March 10,1998,9:00 a.m. to 12:00 noon,
Suggested Meeting Agenda.
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limited to the factual background and violations alleged, actions that Conoco could take
to resolve the alleged violations, and the drafting of a settlement that would codify
actions required of Conoco and the plaintiffs for resolving the issues at hand.125 The
timeframe, established during the next meeting, was surprisingly short (3-4 meetings over
a span of weeks) for discussion of refinery process changes and broad community- and
state-wide concerns. Within the context of the "four games of chess," it is possible to see
why the timeframe had to be condensed.
Mediation progressed through a combination of shuttle diplomacy and face-to-
face meetings between the parties, including COPIRG, resident-plaintiffs, plaintiffs'
counsel, the refinery's plant and environmental managers, senior counsel, and other
attorneys (some outside counsel). An additional party, a scientist with experience in
refinery emissions who worked for an environmental organization in California, joined
via telephone for at least one meeting. Her role was to ensure that proposed alternatives
were feasible and would meet plaintiffs* objective of reducing sulfur emissions.
Plaintiffs understood that there were probably problems at the facility beyond the matter
of the sulfur recovery units, but lacked the sophistication to pursue them. Plaintiffs'
attorney admits that the case lacked the value necessary for bringing in more experts to
consider other options (value hi terms of the potential for success at trial). Nonetheless,
their hired expert was adept at evaluating Conoco and offered a buffer for the plaintiffs as
they discussed refinery operations under conditions of uneven information.
The first meeting after preliminary discussions took place in the mediator's
offices on March 31st. The meeting's agenda, drafted by the mediator, included (a) a
presentation by Conoco, (b) a discussion of a proposed SEP, (c) summary of the
preliminary meeting, (d) possible approaches to the EPA, (e) steps to address the court's
schedule, and (f) scheduling issues. Conoco's environmental manager began the
session with a presentation of the refinery's efforts to reduce sulfur emissions, using an
aerial photograph of the refinery as a backdrop. Sources of sulfur dioxide and sour water,
fate and transport, historic emissions, odor dynamics, and other aspects of the broader
problem were presented. The mediator, an experienced environmental attorney, modeled
the discussions after the National Environmental Policy Act's scoping process, where
project alternatives are scoped and then compared in terms of their environmental and
economic impact. Plaintiffs relied almost entirely on Conoco's information, much of
which had been promised at the preliminary meeting and shared at the first session, in
order to evaluate Conoco's proposals. Information sharing was followed by a discussion
of whether the settlement discussions could result in a SEP that would resolve EPA
Region VIITs RCRA action. There were concerns that such an arrangement wouldn't
work, that plaintiffs would still require a consent order for any settlement with them, that
an EPA global settlement with Conoco refineries could negate elements of the SEP that
parties were working toward, and that EPA would require a permit modification that
could delay resolution of the citizen suit because it would require extensive emissions
modeling and public comment. Parties agreed to work toward an interim agreement
125 Draft Settlement Discussions between COPIRG and Conoco, March 10,1998,9:00 a.m. to 12:00 noon,
Responsibilities of the Parties.
126 Minutes of Settlement Discussions, March 31,1998, between COPIRG and Conoco.
127 Settlement Discussions Between COPIRG and Conoco, March 30,1998, 9:00 a.m. to 12:00 noon,
Meeting Agenda.
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during the next meeting and to put aside these broader issues. Conoco's involvement
with EPA in active litigation restricted their ability to collect additional information
requested by plaintiffs for the next meeting (such as an inventory of sulrur and other
compounds emitted by the facility).
Between the first and second meetings, plaintiffs met with the mediator to discuss
desired components of an interim agreement.12* Here, the community's sense of what an
agreement should include was made clear. It is instructive to compare these elements
with an interim agreement that was developed at the next mediation session, held on
April 20th:
Table 7. Comparison of Plaintiffs' Desired and Actual Components of Interim Agreement.
Conoco to provide S02 inventory for the refinery NOT INCLUDED
Conoco to support a community educational program
for the Swansea, Blyria, and Globeville neighborhoods
mat would be conducted over one year and include:
a. Information and briefing concerning efforts
to minimize or eliminate to the extent
possible odor sources to the area
b. A one-time performance of a simple air
quality dispersion model to illustrate how
emissions are dispsrsed^nder diffisrent
meteorological conditions
c. A briefing about on-site monitoring that is
performed by Conoco to protect employees
and the possibility of feneelihe monitoring to
protect the community
Conoco to specify the anticipated design and
development schedule &r any engineering studies or
other efforts underway or planned to reduce emissions
related to this action at the refinery (adherence to this
schedule will not be subject of a breach claim)
Conoco to keep p^intiffe informed on a regular basis
of efiforts or development work to reduce emissions
related to this action through an information exchattge
Conoco to provide all relevant information regarding
current or planned efforts to reduce emission* related
to this action as soon as practicable after information is
available or after submission of sueh to EPA orifae
State of Colorado
Conoco to fund a Community Righfcto-Know project
in a lump sum of $7&OG0, Project designed to collect
information about emissions in tlie community and to
evaluate options to reduce such emissions. May
include air quality modeling, monitoring, and technical
and
protocols to ensure accurate information. Agree not to
use funds for adversarial proceedings or for directly
targeting Conoco 'a facilities
128 Meeting with Randy Weiner, Michael Mae, Lorraine Granado on April 7,1998.
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Conoeo to invite the Swansea, Elyria, and SAME, with option for parties to deteruime that &
Globcville communities to participate as a member different or new forum ivould be more appropriate
of the Industrial Council
them the Council
Conoco to wMidraw request to State for
modification of existing permit related to
turnaround emissions
CO to prosecute a civil acUon to court related to the
subject matter of this action
Plaintiff lo dismiss civil action without prejudice SAME, although a Second Settlement Agreement to
be executed by Conoco would require dismissal
with prejudice
The above interim agreement accomplished several things: it maintained a certain level
of ambiguity around the process and extent of sulfur dioxide emissions reductions, it
transferred some of the monitoring, modeling, and emissions investigatory work from the
company to the plaintiffs, and it included stipulations that served to shield the company
from further liability. It also de-linked the establishment of a performance measure (SO2
emissions reductions) from any community-driven evaluation process, for which
plaintiffs had advocated. Thus, the interim agreement gave Conoco a level of flexibility
that was necessary to pursue negotiations with EPA Region VIII, which by this time
began to focus on an SO2 emissions reduction SEP.
As with the Vulcan mediation, it was challenging for the parties to reach a point
where they could engage in creative problem solving. As the interim agreement suggests,
progress in this regard was slow at first. At some point, either at the second meeting or at
future sessions designed to finalize settlement documents, the parties began to focus on
some of the specific elements of the production process. Plaintiffs credit the plant
manager for showing a level of patience in explaining how production was related to
sulfur emissions. While Conoco's attorneys sought to limit his sharing of information,
plaintiffs were given an opportunity to evaluate what they were being shown:
Then we were really clear that they needed to replace sour water stripper number one. It was
ancient, it was frequently down, it wasn't able to process as much as the second one. And so what
had happened is since this area was declared an economic enterprise zone, then well you know all
the tax breaks and stuff, so Conoco had literally quadrupled in size. But it had not necessarily
kept up making the changes to deal with the additional production. And so the sour water stripper
was older than heck. They had to put in one new sour water stripper that was unit number two but
41
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unit number one had never been replace so how they were dealing with that was just flaring, just
burning it off. So we were really clear that the response had to be that they had to replace this.129
They were so busy selling us on their preferred solution that it seemed that we were getting really
good answers to our questions. And ultimately I think Conoco did a very good job of killing three
birds with one stone. And I think we went along with it in part because I recommended that we
not continue with strong litigation with the judge that we got and because they did provide us with
some things. And we did get a green light from the San Francisco folks that ultimately this is
what a refinery ought to do in a situation like this. So, that's when you settle.130
Plaintiffs characterize the mediation as a relatively straightforward process that lacked
the "human element" of the Vulcan process. It is also made clear that the process overall
seemed driven by Conoco as well as forces beyond the scope of the mediation.
Information flowed primarily in one direction: from Conoco to plaintiffs, who felt as
though Conoco was "selling" a preferred option from the outset. Even the first official
proposal for a community-driven SEP was made by Conoco. The effect of this
arrangement was to give residents a sense that "there wasn't much to discuss," which
discouraged attempts to reconfigure the process around their objectives (i.e., monitoring,
modeling, community awareness, informed, community-driven process of selecting
engineering alternatives):
I think we let them off the hook too easily. And I think the things that they planned on doing were
OK, but we really didn't get anything that we were looking for as far as the community goes. We
did want some type of ah* monitoring, we did want some type of notification system hi case mere
was a bad flare-up so that people with allergies could stay hi the house or lock themselves off. We
wanted some of those kinds of things that we probably could have forced on them. Small things,
but things mat would really make the community feel a little bit more protective of their health.
[We didn't pursue these because] I think that there were so many different people involved in the
process, they were so willing to give up what they were giving up, and they were really pushing
on a timeline and trying, there was already a suit Hied I think and they had so much time to come
up with a solution.
As parties moved toward detailing the final settlement documents, the two most
important questions for the residents remained: How did Conoco's sulfur emissions
problems affect the surrounding area and What level of emissions reductions would
amount to a noticeable improvement in odor abatement and human health more generally?
Residents' notions of how these could be answered were de-linked from Conoco's
decision-making processes (both internal and with regard to the RCRA actions), meaning
residents had to rely in large part on the expertise and leverage of the environmental
agencies to erasure that these were properly addressed.
The Agreement. The final agreement between plaintiffs and Conoco was signed
on April 29 ,1999, nearly a year after plaintiffs filed a Notice of Dismissal dismissing
the citizen suit without prejudice.132 Parties reached an Agreement Regarding Notice of
129 Interview of Swansea Resident, March 5,2002 in Denver.
130 Supra note 81.
131 Supra note 89.
132 Settlement Agreement and Release between COPIRG Citizen Lobby, Michael Maes, Lorraine Granado,
and Conoco, Inc., April 29,1999.
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Dismissal on May 4th, 1998, which would guide development of the final Agreement.
Table 8 details elements of each document:
Table 8. COPIRG v. Conoco Settlement Elements.
l^o^^fplsinlssal^si^enwnt, "'• -'"-*. ' !&8iew>«i.4gr§«meBfs : ~\^'-,
Plaintiff agrees to file notice of dismissal Plaintiffs will designate a payee and account to receive
fiinds, to which Conoco wlU pay a lump sum of $72,000
Conoco to use its best efforts to secure participation of a Conoco to withdraw its December 30,1997 request to the
representative of the Globeville, Swansea, or Ely ria state that the state mod i fy Conoco' s Hermit #91 At) 180-3
communities hi the Industrial Council (best efforts to include turnaround emissions
commitment not subject to breach claim)
Plaintifife discharge Conoco from all liability, rights,
claims' costs» expenses, actions, causes of action, suits of
e liability and controversies of every kiad concerning the
claims and incidents which were raised in Civil Action
Agreement shall not affect parties1 rights if litigation is
refilled; if an action reasserting the Claims in tills case is
filed, parties agree that all defenses and arguments will be
argued as if this case had been stayed rather than
dismissed
Agreement shall not be construed as an admission by any
PW1 *•"* * ; v ': v ' * /"
All press releases will be jointly issued
Agreement supercedes all prior and contemporaneous
negotiations, agreements, representations, and
understandings of parties
Persons represent that they are fully authorized to
execute and deliver the agreement on behalf of each
party; agreement is binding, constitutes the entire
agreement, can not be supplemented unless in writing by
each of fine parties, shall be governed by the laws of the
state, and may be executed in any number of counterpart
originals.
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Sulfur dioxide emissions had already been addressed through a Consent
Agreement approved under EPA Region VIIFs RCRA action as well as a Compliance
Order issued by the EPA and CDPHE regarding separate RCRA and Colorado Hazardous
Waste Act violations.133 Terms of settlement for the RCRA actions included a SEP in the
amount of $337,500 plus $627,500 in addition to mitigated civil penalties.134 A SEP, the
purpose of which was to reduce sulfur emissions by 200 tons per year, was designed to
proceed according to an engineering assessment of three options, detailed by the EPA, for
structural changes at the facility to address sour water stripper gas emissions. Plaintiffs
in COPIRG v, Conoco were kept abreast of developments through periodic reports that
included activities accomplished, problems and solutions, any sampling activities,
personnel or schedule changes, activities planned, and estimated costs for activities
planned. A deadline of October 1,2000 was set for completion of construction, testing,
and implementation of the engineering alternative selected. A representative of the Cross
Community Coalition attended further meetings with refinery staff and three community
involvement groups in order to help the residents oversee the implementation of sulfur
dioxide emissions reductions while planning an appropriate Community Right-to-Know
project. The SEP proceeding on-schedule, leading to improvements to the #1 SRU and
its associated tail gas Incinerator and allowing sour water stripper overhead gas to be
proceeded in the #1 SRU.135 Conoco's completion of the SEP was conditioned hi part on
its agreement to modify its air emissions permits for its #1 and #2 SRU's to indicate that
(a) all sour water stripper overhead gas would be processed in the two units, (b) no sour
water stripper gas would be flared unless both SRU's were incapacitated unless there is
an emergency situation, and (c) SRU emissions would be monitored and records
maintained. The refinery's startup, shut down, and malfunction emissions fell from an
average of 322 tons per year (1994-1998) to 18.4 tons in 2000.137 Conoco's overall
expenditures for the construction phase of the project totaled over $2 million.138
Residents, having achieved their objectives of ensuring substantial reductions in
sulfur emissions as well as permit modification that restricted the kind of flaring
operations that led to citizen complaints, were left to decide how best to apply their
settlement dollars under the Right-to-Know Project.139 The settlement dollars were spent
133 Consent Order, RCRA (3008) VIII-97-03 in the matter of Conoco, Inc., August 11,1998; Compliance
Order on Consent, RCRA (3008) VIH-98-03 in the matter of Conoco, Inc., August 7,1998.
134 Ibid.
135 See Quarterly Status Reports, Docket Numbers RCRA (3008) VIII-97-03 and RCRA (3008) VIII-98-03,
Conoco Sulfur Dioxide Emissions Reduction Project.
136 Brenda Morris, Legal Enforcement Program, US EPA Region VIII to Thomas Meyers, Environmental
Director, Conoco, Inc., March 17,1999.
137 Brian Lever, Refinery Leader, to John Works, Technical Enforcement Program, EPA Region VIII, Re;
Sulfur Reductions SEP Completion Report, Docket Numbers RCRA (3008) VIII-97-03 and RCRA (3008)
VIII-98-03, June 29,2001
138 Ibid.
139 In addition to carrying out the Right-to-Know project, residents had to determine whether involvement
in one or more of the existing community involvement forums would be worthwhile. The Settlement
Agreement required the parties to seek inclusion of a Swansea-Elyria-G lobevilie representative on the
Industrial Council, which was formed in 1993 by Conoco to address odor complaints originally made by
Commerce City residents. The Council was responsible for setting up meteorological stations around the
area and link them to the existing complaint response system. The network gave Conoco and other
businesses the ability to identity where the source of a complaint may have originated. Residents did
appoint a representative for the Council, but were dissatisfied with the format of the meetings as well as the
44
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through the Colorado People's Environmental and Economic Network (COPEEN), an
organizing and environmental advocacy group operating under the CCC organization.140
A substantial portion of the settlement was used to research the Toxics Release Inventory
and Environmental Defense's "Scorecard" website. The goal of this project was to
"develop accurate and thorough information around who the major polluters are in the
area, what sort of toxics they emit and the possible detrimental health effects of those
pollutants."141 COPEEN developed a better understanding of the cumulative impacts of
pollution to Northeast Denver, and worked with the 80216 Regional Geographic
Initiative (the zip code has the highest emissions levels in the state of Colorado) to
disseminate educational materials regarding how to prevent everyday exposures to toxic
pollutants.142 COPEEN discovered through its research, which was assisted in part by a
public relations representative of Conoco, that much of the emissions in the 80216 zip
code did not come from large point sources:
We learned from TRI data that there 2 million pounds a year of legal hazardous emissions into the
air, water, and soil. However, we found out that it's really the smaller emitters mat emit more than
that. Because the three major emitters are classes of businesses. It's autobody paint shops,
printers, and wood treatment plants. You know we have so many of those that put together, those
plus other small businesses actually emit more than the 2 million pounds but they're not required
to report to TRI. So we did mat and [the Conoco representative] was very instrumental. In fact,
he used our money to have Tetra Tech do some GIS mapping for us.143
COPEEN began planning a regional initiative to help small businesses improve their
pollution prevention practices in 2000.
Discussion. Much of the residents' concerns regarding air emissions were indeed
resolved by the convergence of the citizen suit and EPA and CDPHE RCRA actions.
Sulfur dioxide emissions originating from malfunctions and maintenance were reduced
dramatically, while permit modifications called for an end to the flaring practices that led
to citizen complaints. At the same time, the division of labor with regards to generating
and exploring options for improving refinery operations and meeting residents' interests
beyond sulfur emissions left considerable room for improvement. To understand why, we
have to return to the mediation space itself. The meetings between parties to the citizen
suit were short, limited by the agenda to an exploration of solutions to a highly specified
and technical problem, and bound by time limits imposed by external processes. In
addition, plaintiffs did not have the momentum and strength of a ruling such as the order
granting standing to sue in the Vulcan case. More important than the parties' alternative
to negotiated settlement, however, was the manner in which the parties' alternatives to a
negotiated agreement changed, at times without even their awareness, as Conoco adapted
and linked the citizen suit to other actions.
lack of authority for those not on the executive committee. Supra note 108 (Environmental Director);
Supra note 129; Memorandum to Randy Weiner et al from Glen R. Smith, Re: Update/Conoco/Citizen
Involvement Forums, September 8,1998.
140 Interview with COPEEN coordinator, March 4,2002 in Swansea.
141 COPEEN Annual Report, Year 2000.
142 Ibid
143 Supra note 129.
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It would be unfair to claim that the residents in the Conoco civil suit lacked a
vision for achieving their communities' objectives. To the contrary, the residents'
proposals that were communicated to the mediator show a level of subtlety and
sophistication that one would expect from a group that had built a community visioning
process into an EPCRA settlement months prior. In the end, residents' desires to involve
the community in generating engineering options and encouraging Conoco to carry out
modeling and an exploration of fenceline and other monitoring technologies were ignored.
Conoco had already determined, through work predominantly with EPA Region VIII, an
acceptable range of engineering options to consider through implementation of a SEP.
The alignment of two RCRA actions allowed Conoco to suggest that adjudication of
COPIRG v. Conoco would recommence should plaintiffs in the citizen suit fail to take
advantage a common, environmentally beneficial project. Thus, rather than utilize the
resources, attention, and authority of state and federal actors, residents found themselves
in a narrow, diminishing window of opportunity, and they acted as any rational actor
would: they settled.
While contextual influences limited residents' ability to fashion a process around
their broader interests (as they did in the Vulcan case), the dispute resolution process
itself had equally important effects on the outcome. First and foremost was the
representation of interests at the mediation. While the mediator was right to conclude
that residents of other areas including Commerce City were "similarly situated" and thus
would benefit from whatever agreements could be reached, he failed to anticipate how
even similarly experienced problems can suggest a wide range of solutions, particularly
when the problem is relatively complex. For example, Commerce residents, who had
been represented for years on Conoco's Citizen Council, would have brought a level of
experience with odor complaints and dealing with and interpreting Conoco's explanations
of such odors beyond the scope of North Denver residents' more recent concerns. They
would have offered additional organizational capacity and knowledge that could have
increased the feasibility of the use of low-cost air monitoring equipment. Most
importantly, they would have been able to communicate how Conoco's past attempts to
adapt to changing regulatory requirements for sulfur emissions had or had not affected
quality of life in the surrounding community. Some of this knowledge would have
overlapped with what was known by North Denver residents, while some of it would
have been unique and worthy of consideration.
Second was the manner in which interests were prioritized. Limited agendas (and
groundrules), as well as representation of residents who began to take note of Conoco's
sulfur emissions only recently, encouraged the mediation group to focus on sulfur dioxide
and the technical feasibility of solutions to the flaring dilemma. It is safe to conclude that
sulfur emissions was the primary topic of discussion, while permit violations was
secondary (not because the citizen suit claimed violations but because Conoco's proposed
solution demanded attention to permit language) and the need for monitoring and
notification was tertiary or ignored. This ordering of interests open to discussion left the
residents at a comparative disadvantage: They had to struggle with technical jargon and
scenarios that did not call for their unique understanding of the effects of emissions,
Conoco's contribution to odor problems vis-^-vis other facilities, or potential means of
assisting the company with its monitoring efforts. Without broader experience with
emissions reductions efforts at the refinery and other industries, residents were also
46
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unable to judge what certain emissions reduction goals would actually mean in terms of
the reduction of nuisances or threats to human health. This lack of comfort hi making
certain value judgments also encouraged the group to yield to EPA's understanding of an
adequate reduction level.
Third was the fact that plaintiffs had only partially overlapping interests.
COPIRG had to answer to a state-wide constituency eager to win legislative victories and
set precedent through administrative changes and legal rulings. Residents desired these
as well, but only if they served to enhance their sense of security, knowledge of emissions
sources and effects, and ability to plan for and respond to emergencies or episodes. Even
substantial reductions in sulfur emissions and associated permit changes do not alone
ensure that these interests will be met. This is particularly true with a large facility that
has over 80 emissions points and numerous toxic and hazardous pollutants to contend
with. In thinking about future conflicts over plant emissions, the question of whether or
not the mediation space can be expanded to include broader issues and concerns that
more closely match a party's interests should be explored. When considering this
question, it is important to ask whether joint filers of a citizen suit will impede a group's
or coalition's ability to do so.
Finally, one must develop a better appreciation for how agencies initiate and
industries adapt to regulatory actions and changes. Residents would have had a different
bargaining position given (a) the lack of any RCRA action, (b) the initiation of only a
CDPHE or EPA action, (c) a reversal in the order in which the actions were filed, or (d) a
difference in Conoco's ability to anticipate regulatory change and build it into its goals
and staff roles. As the RCRA actions moved toward resolution, residents unwittingly
engaged in a mediation and considered a zone of agreement that had already been shaped
beyond their ability to push back, through the assistance of the mediator, agenda, party
representation, or other means. The importance of the mediator's style and approach is
clear here: A mediator who operates by modeling the NEPA alternatives analysis
approach will encourage biases that are similar to what NEPA engenders: technical and
engineering forms of knowledge predominate, and social and experiential knowledge is
subsumed. The mediator should also assist parties in building a shared understanding of
anticipated regulatory developments. Indeed, the Department of Justice's recent
settlement with Conoco greatly overshadows any progress made in sulfur dioxide
reductions through the citizen suit. Residents had a chance to achieve meaningful,
potentially cheaper improvements to monitoring and community relations within the
context of larger sulfur emissions reductions encouraged by the federal government.
Again, purposive thinking about the appropriate division of labor should be considered
long before a party enters a mediation setting.
The Swansea-Elyria communities clearly demonstrated then1 ability to convert
local experience, talent, and ideas into action and positive change. This was evidenced
by the Swansea Community Park Proposal and COPEEN's use of lessons learned through
the Right-to-Know project in working with small businesses. Representatives of these
communities, from CCC and the neighborhood association in particular, have provided us
with a unique opportunity to learn from then1 experience with mediation under different
conditions. We will return to those lessons and further prescriptive advice in the closing
chapter.
47
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Appendix A
Table 5. Important Events in Addressing Conoco SO2 Emissions.
1980's
1991
1993
Grants final
authorization to
operate a hazardous
waste program in lieu
of federal program to
CDPHEinl984;
Consent Order issued
regarding hazardous
waste emissions
Issues Compliance Order in
May, 1985 pertaining to
recordkecpiug, storage of
waste in open or poorly
maintained containers,
inadequate aisle space in
hazardous waste areas, and
personnel training; Consent
Order Issued
1990 ,
Notifies Conoco that
significant
hydrocarbon seepage
into Sand Creek has
been observed
Permit 10AD998 issued to
Conoco for Claus Sulfur
Recovery Unit and Tail Gas
Incinerator; Notifies
Conoco that significant
hydrocarbon seepage
observed
Asks Conoco for
explanation of why No. 2
Claus Sulfur Plant is not
subject to monitoring
requirements, modification
of permit and updated
APBN
OEWOCO
air emissions in CO as iow-sulrur diescl fuel at
Announces joint
manufacturing venture
with Colorado Refining
Co. to share the cost of
complying with
environmental controls
(.05% sulfur diesel fuel
required by Pet 1993)
Requests modification
of two air emission
permits tor sulfur
processing facilities;
upsets can cause
diversion of sulfur to
flare; request permit
91 ADI 80-3 be
modified to allow
diversion of off-gas to
#1SRU; builds #2 SRU
48
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1994
1996
Agrees to suspend
modi ficalioms to 91A0180-
3; Issues Inspection Report
of Conoco in July
Writes CO attorney
general regarding #1
SHU; explains changes
made to allow
processing of SWS
reports toxic emissions
increase 32% over 1993
to 143,6J 1 poimds/yr
(bat has halved
emissions since 1988);
Enters into Discuss odor complaints Odor complaints made Discusses odor
Compliance Order on and upsets at refinery with to CDPHE and other complaints and upsets
agencies with CMP3; Enters
Consent to resolve CDPHE; discuss several
Conoco's civil areas of possible
violations of 1989 noncompliance with
Consent Order Conoco; requests data on
incidents where acid gas
and SWS otfeas have been
combusted in main plant
flare since Jane 1993
into Compliance Order
on Consent to resolve
civil violations of 19S9
Consent Order
(includes SEP to collect
household 'hazardous
r'
49
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April
1997
June
1997
Process turnarounds and
associated emissions differ
from start-ups, shutdowns,
and malfunctions; therefore,
emissions need to be
included in Conoco's
construction permit;
possibility=would be to
include process unit
turnarounds as alternative
operating scenario for #2
SRU
Sends tetter to
Conoco counsel
regarding pilot ADR
project; motion for
extension to consider
pilot project and
agency's national
position on
respondent's legal
issues
Bequests seven day
advanced notice of major
planned maintenance
activities impacting SO2;
planned maintenance for #2
SRU need to be
incorporated into
construction permit for unit;
process turnaround
emissions need to be
included in permit as
alternative operating
scenario
Motion for extension of
time
Motions for accelerated
decision (counts 42*59
and 62-73); claim that
failed to conduct certain
inspections is
unfounded, as Conoco
has logs for inspections
in question
Oct. AU recommends
1997 termination of ADR
process; parties
remain far from
agreement; order
scheduling reply brief
Attorney proposes AU recommends
litigation to COP1RG termination of ADR
process; parties remain
far from agreement;
order scheduling brief
reply
50
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Nov.
1997
Requests stay of
litigation to pursue
settlement
negotiations; hearing
to proceed Jan 31 if
no settlement
Notice of violations Jteejuests stay of
and intent to sue litigation to pursue
wi&EPA
Jan. Reach settlement in
1998 principle; settlement
to include sum plus
SEP that meets SEP
guidance; motion for
time extension
(granted)
Complaint filed under Reach settlement in
Section $04 of the principle wife EPA;
CAA; proposed motion for time
penalty of $27,50Gper extension (granted)
day
March Motion for extension;
proposed SEP is
administratively
complex and involves
CO, EPA, and
COPffiG
Evaluates proposed SEP for
possible necessary permit
modifications; SEP wUl
require administrative
permitting review by CO air
program, EPA, and
COP1RG
if
Joint motion with Joint motion with
Conoco to vacate CQPIRG to vacate
order; joint motion to order; joint motion to
vacate scheduling vacate scheduling
orders (denied); orders (denied);
scheduling conference scheduling conference
forAprlt 15; meet ^br April 15; meet with
with Mediator on Mediator on March 10
March 10 and 31 and 31
May
1998
Agreement regarding Agreement regarding
notice of dismissal; notice of dismissal; will
will sign settlement sign set! lenient
agreement and release agreement and release
July
1998
Several negotiation
sessions since June
1998 with EPA (one
remaining for My 21)
Slate of Colorado Inspection
Report for Conoco (Jury 26)
Several-negptiatfort
sessions since June
1998 wifliBPA (one
remaining for July 21)
51
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August
1998
Consent Agreement
and Order
Compliance Order on
Consent
Order of dismissal
(sign agreement with
Conoco on April 29,
Order of dismissal
(signs agreement with
CQPIRGetal. on April
29,1999); Consent
Agreement and Order
wWiEPA
52
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Negotiating with a Captive Audience in Kennedy Heights, TX
Settling Environmental Justice Litigation with a Special Master
Gregg P. Macey
. It's really hard not to just give up in despair, because you have to keep on living, regardless of the
circumstances you live in. And one thing is true about this, we do believe that there's a being that
will look out for us, you know, a lot of people don't think that's popular, but it does give you some
comfort. Because I can't go around saying oh, I Hve on top of a, I can't do that, because I can't
move. I have to work. But sometimes, that will creep in on you, but I don't let it take me over -
Resident of Kennedy Heights, 2002.
Background. Whether viewed from the air or on the ground, Kennedy Heights does not
evoke the kinds of images that predominate in accounts of environmental injustice. Yet
subtle clues of the land's history, which propelled residents through one of the most
expensive (and to many involved, costly) environmental justice lawsuits in history,
emerge as one walks the streets of this subdivision in southwest Houston. A plot of land
is left undeveloped, sidewalks appear to have buckled and cracked at certain points, and a
few yards seem in the process of gradually sinking in. Starker signs of environmental
neglect are prevalent, but only to those who must daily question their land, or find a way
to justify putting it out of their minds. The locus of residents* concerns is the water.
Many Kennedy Heights residents appear to have abandoned trying to drink their tap
water, but stories of the many shades and smells of water used for cooking and bathing
are still common. To this day, some of the residents have not been given what they feel
is a definitive account of whether the source of these signs is a continuing threat to their
health, or just an unfortunate vestige of another time. This uncertainty is directly related
to prior uses of the land upon which Kennedy Heights was built, dating back many
decades.
Figure 1. Kennedy Heights (rectangle) and Approximate Crude Oil Storage Tank Locations.
The Pierce Junction oil well
yielded as much as a quarter
of a million barrels of oil
every two months during the
1920's.1 Discovered in 1921,
it was connected by pipeline
to a series of pits, including
three unlined, earthen storage
tanks southeast of Houston,
known as the Mykawa Tank
Farm. These pits, each with
the capacity to hold 300,000
barrels of crude oil, were
1 Pierce junction well flows 250,000 barrels in two months period. The Houston Chronicle, September 2,
1921.
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located to the south of Selinsky Road and to the east of what is now Cullen Boulevard
(then Chocolate Bayou Road) in the Kennedy Heights subdivision.2 The northeast (NE)
and northwest (NW) pits were operational and covered with lumber roofing while the
southeast (SE) pit simply filled with brine.3 The storage tanks were partially destroyed
by a hurricane that broke apart the wooden roofs covering the tanks in 1927. Because of
the damage as well as marginal production at the Pierce Junction field, owners Gulf
Production Company (Gulf Oil) ceased operations at the tank farm.
Figure 2. Earthen Pits Prior to Residential Development.
While use of the property after the pits were
abandoned is subject to debate, it is clear that
the site would accommodate other land uses
over the course of the next four decades.4 The
pits remained visible in aerial photographs taken
in 1935,1945,1955, and 1969.5 Plaintiffs later
alleged that during much of this time, Gulf Oil
failed to "secure the site from the public and, as
a consequence, municipal waste, junk, debris,
rubbish, and hazardous substances were
deposited at the site."6 In the mid-1960's, Gulf
had the site appraised and began to take steps to relinquish their control over the property.
The appraisal documents include references to desired levels of racial segregation, and
refer to the land near the tank farm, located near Chocolate Bayou, as a "typical Negro
area."7
Should this land be developed for low- to medium-priced housing with FHA or VA financing, it
would have to be a bi-racial development according to present regulations. It is felt that
eventually this would be the highest and best use of this property because it would then serve as a
2 Statement showing amount of tankage capacity location and quantity of crude petroleum owned by the
pipe line, also amount held in storage for others and unfilled storage at close of business, November 30,
1924, received December 15,1924 by the Texas Railroad Commission.
3 Deposition upon written questions of James F. Stephenson, John R, Simmons et al vs. Chevron U.S.A., et
al (C.A. No. 95-14770).
4 For example, some documents suggested that Gulf leased the property to local dairy farmers and
cattlemen. A review of aerial photographs from 1930 to the 1960's revealed evidence of cows in a field
southeast of the NW pit in 1955.
5 Krentz, D. (1991). Interoffice correspondence from to Anthony Crisci, Capital Projects, City of Houston
from David Krentz, Environmental Health and Human Services, October 30,1991.
6 Plaintiffs' Second Amended Complaint, Adams et al v. Chevron U.S.A. et al. (96-CV-1462) (S.D. Tex,
October 1,1996). in a letter to a city official, the contractor who first encountered signs of crude oil
contamination also noticed items that appeared to have been dumped in the area of the former pits ("6/3/91
- Hit Foreign Debris at 5002 Fairgreen"; "8/5/91 - Hit Car Rim 11326 Murr Way, underground"; "12/3/91
- Murr Way Station #32+55 (car door)"; "12/3/91- Murr Way Station #32+55 (tire)"). Paskey, C.W.
(1992). Letter to Richard Scott, Deputy Director, Capital Projects Department, City of Houston from C.W.
Paskey, Construction Coordinator* Pas-Key Construction Services, Inc., August 27,1992.
7 Wyatt, E.A. (1966). Letter to M.L. Hanna, Gulf Oil Corporation from Earl A. Wyatt, Earl A. Wyatt and
Associates, August 15,1966.
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buffer between the white residential area in Crestmont Park and the heavily colored developments
to the north and west.8
We feel by being surrounded by negro subdivisions this property is committed to a use, either for
subdivision purposes or other, by this element. Eventual industrial use may be foreseeable;
although, this seems unlikely with the nearest trackage available two miles away.9
Such references to the demographics of the area are striking. Yet they mask a more
important distinction that was made in appraisal documents for the tank farm. Prior to
sale of the property, efforts began to discern the appropriate cost of the land purchased
with the storage tanks filled, after their contents ("sludge," or the remnants of stored
crude oil10) were removed.
The present worth of subject property is its market value less the cost of draining, filling, and
leveling the three large open tanks. Mr. R. Salmon, a dirt moving contractor, estimates it will take
3 months or longer to do this work, at a cost of $2,500 per tank. Mr. Neville of Humble figures
his cost at $1,500 per acre of tank on some tanks in Humble that have as much as six feet of B.S.
& W. These tanks are approximately 400 feet square, and it is felt that $5,000 per tank is a safer
estimate of cost, as it is not known how much experience Mr. Salmon has actually had in this type
of work. Like Mr. Neville, Mr. Salmon would spread out the sludge on the land to dry. It is felt
that land east of Chocolate Bayou Road will not sell as high as land adjoining a present residential
development, especially where this land will have to be developed as a buffer zone between
colored and white areas. For the above reason it is felt that the price being asked for the 29 acres
fairly well represents the price at which a residential developer would buy subject property, if it
were in its original condition and free and clear of tanks.11
Highest and best use: The most profitable use for mis land appears to be for medium priced
houses for white occupancy, with a 200-foot-wide commercial strip fronting on Chocolate Bayou
Road as a buffer strip against the all colored Cloverland Subdivision on the west side of Chocolate
Bayou Road.12
This area is bom colored and white, with Chocolate Bayou Road serving as the dividing line.
Because of colored settlements across the road to the west the highest and best use for this land
appears for low cost homes for white occupancy. The three large open earthen pits on the land
will have to be filled before subdivision work can proceed on all the land. This may cost from
$2,500 to as much as $5,000 per tank.13
For six years, Gulf Oil '"unsuccessfully attempted to dispose of this acreage."14 The
company then began negotiating with John Lester, President of Log Development
Company, who was interested in "acquiring the site for a Negro residential and
commercial development."15 In 1968, Gulf Oil granted, sold, and conveyed the site to
9 Clemons, R.E. (1961). Letter to J.L. Irvine, Vice President, Gulf Refining Company from R.E. demons,
The demons Company, January 5, 1961.
10 The contents of crude oil storage tank bottoms include a mixture of crude oil, water, and other substances
commonly referred to as basic sediment and water, or BS&W.
11 Wyatt,E.A.(1964). Appraisal of 131.61 acres of land, John White Survey, A. 1001, Harris County,
Texas, by Earl A. Wyatt, for M.L. Hanna, Gulf Oil Corporation, February 10,1964.
12 Ibid.
13 Wyatt, E.A. (1964). Letter to M.T. Hanna, Gulf Oil Corporation, February 17,1964.
14 Memorandum from PJ. Maddison to R.B. Gillies regarding Exchange of Properties, Pierce Junction
Earthen Tank Farm, Chocolate Bayou Road, Houston, Texas, November 14, 1967.
15 Ibid.
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Log Development.16 The transaction involved a tax-free exchange of the Pierce Junction
Tank Farm (valued at $274,107) for the northwest corner of Richmond and Montrose, in
Houston.17 Log Development did not remove any tank bottoms in the area of the earthen
tanks utilized by Gulf, a practice that had been suggested for the property when it was
assumed that it would become a white subdivision. Lester simply had the berms along
the sides of the pits pushed inward, filling the pits.19 The Kennedy Heights subdivision
replaced the Mykawa Tank Farm in the late 1960's,
The Problem. The name of the subdivision, its location, a savvy marketing campaign,
and documents obtained from Log Development suggest that in the end, the homes were
targeted at below-middle-income African-American residents. The subdivision quickly
filled with families realizing the American dream of owning their own home for the first
time. However, several aspects of the subdivision seemed "off' to the new residents.
Sidewalks and backyards began to buckle and sink. Residents noticed putrid smells and
strange colorations in their tap and bathwater. Some even fell ill to diseases that were not
in their family histories, including multiple forms of cancer as well as lupus. One
individual had to cope with four different forms of cancer nearly simultaneously.
Well, what I remember though, when I was a kid, we used to crawfish in the ditch behind the
house, and I remember the soil had like four or five different levels. It was like orange, purple,
blue, and I guess reddish, plus the dirt on top. But as a kid, I didn't know what it was.20
I've been in Kennedy Heights for 30 years, I waited for my house to be built over there, so that's
how long I've been here. And as having young kids there, the water has always been bad. We
tried putting water filters, everything on the water. And really I wish I would have kept the filters.
Because the Miters that we would take out, it was filled with oil and green gook and everything
else. So finally it got so bad to where we were afraid to drink the water even with filters. We
changed filters 2-3 times a month and it still was bad, so we had to start buying water to drink.
And we've always had dogs in the backyard. And every dog we've had, anytime they would dig,
they would die. At first we thought somebody was poisoning them. But after we looked at it,
anytime they would dig deep in the yard, they would die. So every dog we had in the back, that's
what happened to them. And we had a pear tree in the back and it was like one side of it would
bear pears and one side wouldn't. So the side that didn't bear pears, that's where the dogs would
dig all of the time and evidently there was something there.21
There's too many deaths for the amount of people. And that's what got somebody's attention.
That too many people were getting sick and dying. And there were too many abnormalities and
birth defects in people. I mean, you know, even whole households, everybody was sick. You
know, not just one.
16 State of Texas, County of Harris (1968). Conveyance of property from Gulf Oil Corporation to Log
Development Company, Inc., January 29,1968.
17 Maddison, P.J. (1967). Letter to R.B. Gillies from P.J. Maddison regarding exchange of properties,
Pierce Junction Earthen Tank Farm, Chocolate Bayou Road, Houston, Texas, Richmond and Montrose,
Houston, Texas, November 14,1967.
18 Affidavit of John R. Lester, Dorothy Adams, et al vs. Chevron, et ai (C.A. No. H-96-1462).
19 Verdicts Forecast (1997). Kennedy Heights case narrative. hup://66.12J45.1 H/vf'narrative/htmi
(Accessed December 4,2002).
20 Interview with Kennedy Heights resident, April 20,2002, in Houston.
21 Interview with Kennedy Heights resident, April 20,2002, in Houston.
22 Interview with Kennedy Heights resident, April 15,2002, in Houston.
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Like on my side, it was like every other house, somebody had died of cancer. You don't tell me
that's normal. That's not normal. [The special master] was trying to tell us that that was normal
in a neighborhood. It's not. This was just on one side, within a block. I'm not talking about the
other side, or down the street. Just one side. You're talking about 12 houses and every other
house, somebody has died with cancer.23
A more prevalent concern to local residents than even disease and health problems was
the fact that the water lines under subdivision properties would continuously rupture.
One resident, a school teacher, recorded important events on the inside cover of her
husband's Bible:
Lord help us. We are your children. God, seems like the water is making Albeit sick. Lord help him.
September 12, 1971. The water has broken again.
October 4,1971, water break.
October 22,1971, water break. The water smells real bad today. It's yellow-looking. What are we going to do?
April 5,1972, water break.
April 26, 1972. The pipes are rusty, the workers said to let the water run a long time.
July 1973, the water has broken again. Albert is sick. Lord, I have called the city. They won't fix the water.
April 1975, water breaks.
June 1975, water breaks.
December 1975 water break.
May 1976, water breaks.
November 12,1976, water breaks.
January 1,1977. New Year's Day. The water breaks. I can't cook.
January 20,1977, water breaks again.
May 10,1977, water breaks.
May 8,1978. City put in a blue plastic pipe. Hope it will hold.
This is May 3,1981. The pipes burst.
Oh, God. The pipes are bursting.
Feb. 4,1982. Pipe burst.
June 19,1983, Pipe burst. I can't cook. Lord, what's next?24
In spite of countless complaints made to the city for twenty years, Houston's Capital
Projects Department did not begin major work on pipe excavation and replacement until
the early 1990*s.25 A contractor, Pas-Key Construction Services, was sent to excavate a
site on Murr Way in order to replace some of the waterlines. On September 18,1991, the
contractor shut down the site when a worker collapsed during site excavation. Other
employees remarked that there was a creosote odor in the area and complained of eye
irritation.26 The workers left a sizable hole in the ground and "ceased all construction
operations until further notice from the City of Houston Health Department."27 Residents
began to wonder why the work had ceased. Perhaps the pipe replacements were part of a
23 Interview with Kennedy Heights resident, April 20,2002, in Houston.
24 Taken from the inscriptions made on the inside cover of The Holy Bible, Michelangelo Edition, owned
by a resident of Kennedy Heights.
2 Even after litigation began, City of Houston Utility Complaint Notices from July 14,1995 to September
29,1996 reveal at total of 108 utility complaints made by Kennedy Heights residents. Residents continue
to complain of water main breaks.
26 Pas-Key Construction Service, Inc. (1992). Report on Water Project No. 10086.
27 Paskey, R.L. (1991). Letter to Howard Nicholas, Director of Capital Projects Department, Department of
Public Works from R.L. Paskey, Pas-Key Construction Service, Inc., September 26,1991. Thereafter, the
Director of Health and Human Services for the City of Houston recommended that "excavations in the
Kennedy Heights subdivision be temporarily halted." October 15,1991 doc.
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broader effort to increase the number of units available within the subdivision, as word
spread that a low-income housing development was in the planning stages.28
Unbeknownst to the residents, the city of Houston hired a contractor (Lockwood,
Andrews, and Newnam, Inc. [LAN]) to investigate potential petroleum contamination at
the site. This occurred after Public Utilities Branch personnel sent to the site by the city
noted a "creosote like odor in the air" and found trihalomethanes (a volatile organic
compound) and evidence of the possible occurrence of 1,1,1 trichloroethene.29 Soil
borings drawn along the water main replacement route at 0-10 feet found contamination
at a depth of 2-7 feet, including petroleum hydrocarbons "not normally indigenous to
surface soils."30 While the city's analysis of samples taken from the two water mains
near Murr Way (where Pas-Key work had ceased) suggested "no contamination of the
potable water supply system," LAN, Inc. found concentrations of total petroleum
hydrocarbons (TPH) above levels recommended by the Texas Water Commission (TWC)
for soil contamination.31 It was also argued by the city's Director of Health and Human
Services that replacement of water lines should continue, to allow for "higher water
pressure" that would "decrease the probability of groundwater infiltration."32 It would
later be determined that the community's water lines ran through the layer of soil where
the some of the highest concentrations of hydrocarbons were found. Plaintiffs would
argue that contamination migrating through ruptured pipes was the primary route of
exposure to the residents.
The full results of the city's testing efforts were not initially shared with residents or the
contractor.33 The Texas Water Commission (TWC), Texas Railroad Commission (RRC),
and regional office of the Environmental Protection Agency, on the other hand, were
contacted. A TWC official arrived to conduct a site inspection, but because the
excavated site had been filled in, he was not able to take samples (according to what are
28 A new section of the Kennedy Heights subdivision was developed in 1994 and started accepting residents
in July of that year. The developers engaged in one of the first environmental reviews of the area, which
included soil and groundwater tests of the vacant property by Law Environmental Inc.
29 City of Houston (1991). Report of laboratory investigation of samples collected from Murr Way
locations, City of Houston Public Utilities Branch, Laboratory Section, September 18,1991.
30 Arradondo, J,E. (1991). Letter to Howard N. Nicholas, Director, Capital Projects Department from John
E. Arradondo, Director, Health and Human Services, October 15,1991. City officials did not know
"exactly what the man-made pits were used for" at this point, although they had obtained aerial
photographs indicating the three large pits, each four acres in size.
Lockwood, Andrews, & Newman, Inc. (1991). Potentially petroleum contaminated materials
investigation, Kennedy Heights Subdivision. Prepared for the City of Houston, Project No. 10086,
November, 1991. Concentrations of total petroleum hydrocarbons that were above action levels for soil
contamination set by the TWC were found in soil samples from five of the 21 soil borings.
32 Des Vignes-Kendrick, M. (1992). Inter Office Memorandum to Director of Capital Projects, City of
Houston from M. des Vignes-Kendrick, MD, MPH, Interim Director, Health and Human Services
regarding Kennedy Heights Contaminated Soil Complaint, February 6,1992.
33 In a summary of Water Project 10086, Pas-Key states that "Because the City had not transmitted to Pas-
Key the promised test results, on January 22,1992 Pas-Key submitted various soil samples to Dr. Edwin B.
Smith, a consultant retained and paid by Pas-Key. Pas-Key Construction Service, Inc. (1992). Report on
water project number 10086.
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now TNRCC guidelines).34 Residents, who had begun to meet as part of the Kennedy
Heights Civic Association, formed a Contamination Committee and collected money to
pay for their own environmental consultant. Pas-Key also hired a consultant to
investigate the site. By January 1992, the contractors lured by Pas-Key found that 'the
contaminant is creosote mixed with crude oil which will cause skin rash, dermatitis, and
breathing difficulties."35 Four streets were listed as affected by the city's sampling
activity, although until this point contractors had focused predominantly on the
excavation area.36 A contractor hired by the residents found even higher levels of
polyaromated hydrocarbons in the soil. At around the same time, the TWC changed its
policy for analyzing hydrocarbons.38
The pace of activity picked up in 1994-5, when American Home Dream Corporation
requested an investigation of potential contamination at the site of a proposed additional
53 units within Kennedy Heights.39 The contractor, RRC, and Chevron met to discuss
the results, starting a trend where environmental scientists, regulators, and the regulated
would meet regarding the site, at times without the input of the affected community.
Meanwhile, John Simmons, who headed the Kennedy Heights Civic Association at the
time, began an investigation of his own, finding enormously high rates of cancer and
lupus through an informal survey of the subdivision's 325 homes.40 Simmons
approached one of the most well-known trial attorneys hi the region, and the first step
taken by John O'Quinn and his associates was to seek temporary injunction against a new
34 A TNRCC official familiar with the Kennedy Heights investigation stated: "When we received the
complaint in 1991 and went out and took a look at what was going on. Yeah, when the investigator
actually got to the site, the excavation would have been for the placement of the water line and they had
already filled that in when the investigator went out there. [If it had not been filled], it's possible that there
could have been a sample taken." interview with Texas Natural Resources Conservation Commission
official, May 28,2002, via telephone.
35 Smith, E.B. (1992). Letter to Robert Paskey, Owner, Pas-Key Construction Service, Inc. from Edwin B.
Smith, EFEH and Associates, January 29,1992.
36 Barnard, P. (1992). Letter to Robert Paskey, President, Pas-Key Construction Services, Inc. from Philip
D. Barnard, P.E., Assistant Director, Capital Projects Department regarding Water Project #10086, March
20,1992.
37 John Hanby, the consultant hired by the Civic Association, found "extremely high levels of petroleum-
related chemicals" in the soil, with concentrations "several times higher than the city's highest reading."
Dawson, B. & Robinson, J. (1994). Housing project site may be contaminated. Houston Chronicle,
February 15,1994, p. A-1.
38 Rhyne, A. & Meyers, S. (1992). Interoffice memorandum to all laboratory personnel from Sheila
Meyers and Anne Rhyne, Quality Assurance Specialists, Field Operations Division, September 3, 1992
("The purpose of this letter is to inform the laboratories that the TWC will only accept method 418.1 from
'Methods for Chemical Analysis of Water and Wastes' as an acceptable method for analysis of Total
Petroleum Hydrocarbon (TPH) of water, soil, and wastes...a decision has been made to withdraw ASTM
method 3328-78-B as an acceptable method").
39 Prehmus, C.A. & Pickett, K.L. (1994). Proposal for phase I additional research and limited phase II -
field sampling and laboratory testing program, Kennedy Heights subdivision, Houston, TX from Cynthia
A. Prehmus, Project Environmental Scientist and Kendall L. Pickett, Principal, J^aw Engineering and
Environmental Services to Sid Stephenson, American Home Dream Corporation, February 18, 1994.
40 A survey taken by Simmons showed that there were 113 cases of cancer, brain tumors, lupus, and birth
defects in the subdivision's 325 homes. Cable News Network (1997). Houston residents sue Chevron over
health problems, http://www.cnn.comAJS/9705/26/tQxic.CQntroversy./htrnl (Accessed November 30,2002).
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contractor hired to complete the work of Pas-Key. The injunction was granted, and a
case was set for trial.41
Attempts to sort through accounts of possible contamination under the Kennedy Heights
subdivision were made on two parallel tracks: by the Texas Railroad Commission (and,
near the conclusion of settlement negotiations, the EPA), and by the courts. The RRC
initially assessed the neighborhood in 1994, by reviewing results of the city Health
Department's earlier tests for contamination and above-ground visual survey.42 Based on
the city's data, the RRC concluded that there was no basis for the initiation of cleanup
activities. To encourage regulatory action, residents began a letter writing campaign in
August 1995, sending letters to the TNRCC and the RRC which urged them to
investigate the reported contamination under their homes.43 An attorney representing
John Simmons and other families (approximately 2,000 individuals at the time) also
presented a letter to the Chairman of RRC containing 68 pages of signatures and citing
findings of "explosive levels" of methane gas under certain homes. RRC involvement
be'gan in earnest on August 23,1995, when Commission and Chevron representatives met
to discuss the site. As much of the emphasis of plaintiffs' motion for a temporary
injunction against the new contractor focused on the threat of explosive levels of
methane, Chevron proposed the installation of several gas monitoring wells in areas
where high levels of subsurface methane had been previously identified.44 The stated
purpose of the testing was to "assist in identifying the source of the gas" and to inform
the applicability of surveying homes in the subdivision for gas concentrations within the
residences.
Chevron presented its initial Methane Investigation Proposal in September 1995. The
proposal called for three gas monitoring wells that would use push tools in areas of
"highest reported gas concentrations" (as found by residents' contractors45) to take
41 Order Granting Temporary Injunction, John R. Simmons, et al v. Chevron, U.S.A., et al. (Cause No. 95-
14770) (Tex. Dist. 281, June 3,1996).
42 Flynn, G. & Dawson, B. (199S). Relocation of residents proposed: Kennedy Heights area contaminated.
Houston Chronicle, August 8, 1995, p. Al.
43 Over 200 letters were received by RRC, mostly in September. Most of the letters followed a similar
format. Some included entirely unique portions, such as a letter sent by Anita Smith, a resident of Kennedy
Heights:
We the residents in the Kennedy Heights subdivision area have relatives that have died. And we
still have family, neighbors who are still dicing and we have children who are having liver,
kidney, turners, and heart problems. And there are more than just that of problems and a lot of
residents and their family are having. And we have some children who will not grow...I also have
a four-year-old... ever since he was born he have had the liver problem he born with a piece of his
liver missing. Please. We need your help bad get us out of here. The people of Kennedy Heights
need help now.
44 Tintera, J. (no date). Memorandum to Brenda Loudermilk, Special Counsel from John Tintera regarding
Status of Kennedy Heights Investigation, Harris County, Texas.
45 In the EPA's final report on the site, it was indicated that "Methane has been reported at concentrations
ranging from 25,000 to 480,000 ppm in samples collected by the residents' contractors." Ecology and
Environment, Inc. (2001). Expanded Site Inspection Final Report, Kennedy Heights, Houston, Harris
County, Texas, prepared for U.S. Environmental Protection Agency, Region 6, May 2001, p. 3-3.
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samples at two-foot intervals (vertical).46 The sample with the highest TPH reading for
each well would undergo additional testing for PAH's, metals, volatiles, semi-volatiles,
and hazardous characteristics. In addition, 12-15 soil borings were to be taken to a depth
of 4 feet to test for lower explosive limits of methane, CO2, and O2. This was the first of
several attempts to measure the extent of contamination in Kennedy Heights by Chevron.
They were based on a series of assumptions that were contested by plaintiffs. Tables 1
and 2 provide a sample of the concerns raised by RRC staff and plaintiffs during testing
at the subdivision,
Table 1. RRC Concerns Regarding Chevron Sampling Proposals for Kennedy Heights.
" "'
Methane September
Investigation 9, 1995
Proposal (revised
(resutaniftedas October U,
Installation of 1995 and
Oas resifcmitted
Monitoring December
Wells for the 7,1995)
Measurement
of Methane
Concentration
and Flux Kates
from Soil)
* Need to provide estimated time frame for conclusion
» Clarify volumes to be evacuated through tubing
• Provide approximate location of proposed 12*15 in-situ borings
• Expand on reasons for limiting the shallow borings to a depth of four i eet
• Comment on whether Oievron still plans to pursue determination of ^e
origin of the methane gas
• Comment on why intervals of one and two months for sampling wer?
chosen47
46 Railroad Commission of Texas (1995). Kennedy Heights Chevron Methane Investigation Proposal RRC
Comments, October 17,1995 (Draft); Railroad Commission of Texas (1995). Kennedy Heights Summary,
11/95.
47 Ibid.
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Table 2. Resident Concerns Regarding Chevron Sampling Proposals for Kennedy Heights.
Methane September
Investigation 9,1995
Proposal (revised
(^submitted as October ] 1,
Installation of 1995 and
Gas resubmitted
Monitoring December
Wells for the 7,1995)
Measurement
of Methane
Concentration
and Flux Rates
from Soil
• Vapor phase hydrocarbons are from 2- \ 1 feet with random, fhin, and
discontinuous distribution
• Pockets of liquid and residual hydrocarbons are at 5-26 feet; sampling is
too shallow at 4-10 feet
• Three wells js inadequate
• Need in-situ and discrete samples with depth instead of 5 foot screens, to
avoid dilution of samples
* Samples wUI vent; will not beable to measure concentration,,generation,
or flux
• Should test for a gteater variety of PAH's
• Vertical averaging will depress values
» Fractures in clay can intersect methane pockets, allow gas to migrate to
homes with cracked slabs
• Methane will be generated until food source (hydrocarbons) is removed49
Concerns post-investigation:
* Systematic tight grid approach not used
• Chevron "abandoned" sampling if no results, reported "no vapor" when
should state "no sample"
* Calculations for generation of methane based on inappropriate
assumptions
• Soil descriptions, video t^pes do not support statement that grass roots
caused elevated levels of methane
• Comments that subsurfece methane would render landscape barren are
unsupported
• Neglects methane accumulations beneath foundations90
Residents' representatives and RRC staff were able to comment on several iterations of
Chevron proposals, although this process was at times disjointed. RRC records indicate
48 Railroad Commission of Texas Oil and Gas Division (1996), Comments on Chevron's Comprehensive
Work Plan for Kennedy Heights Subdivision, Houston, Texas Dated October 23,1996.
Supra note 44.
Railroad Commission of Texas (1996), Summary of Residents Representatives Methane Comments
March 20,1996.
J Railroad Commission of Texas (1996). Kennedy Heights Residents Representatives Letter of 4/3/96.
10
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that certain meetings to discuss sampling efforts were held exclusively among Chevron
and RRC representatives.52 Still, subsequent iterations of testing proposals made some
improvements in sampling methodology, in response to RRC and resident concerns. As
sampling began, RRC and resident representatives were also present to observe and
record (by video tape) Chevron's efforts and to split samples for their own analysis when
desired. The RRC adopted a statistical sampling frame for split samples, in addition to
the splitting of samples with visible contamination. An RRC staff member recorded
notes during a meeting with Chevron less than a week before testing was to begin:
Noon on Monday
Any violence leave
Safety #1...
Any questions about Chevron's plan will be referred to Chevron...
What to say:
1. On top of situation
2. We are monitoring the situation
3. Long as it takes
4. Chevron foot the bill, not the taxpayers...
Sample splitting priority:
1. Chevron
2. Plaintiff
3. RRC...
Soil gas permeability we will not be involved in...
Pick worst looking samples for analysis54
On December 7,1995, an RRC staff member was told that he had the authority to
contract for equipment and materials that would be needed to analyze the soil samples for
methane gas and other contaminants that RRC planned to split with Chevron. The
official was told, "It is understood that the cost of this operation shall not exceed
$2,500."55 At the same time, an attorney for the plaintiffs requested that the RRC
observe certain sampling efforts on behalf of the residents.56 Some of the final
preparations made by RRC included coordinating plans for responding to media Interest.
Interoffice correspondence regarding sampling activities would often include a
characterization of media interest and any RRC response. Before testing started,
Chevron's public affairs representative was told by an RRC official that his plan was to
"respond to media inquiries about RRC monitoring roles but to refer questions about the
52 For example, meetings held in May and December, 1996 included only RRC, Chevron, and consulting
firm representatives. RRC/Chevron Kennedy Heights Meeting, 5/13/96 Sign-in sheet; KH Chevron
Technical Mtg., 12/6/95 Sign-in sheet.
53 December 6,1995 doc. Some of the questions raised regarding split samples were whether Chevron
would provide sample containers to RRC, whether they would be loaded under RRC observation, and
whether Chevron would avoid RRC's personnel decontamination.
54 Railroad Commission of Texas (1996). 12/6/95 Meeting with Chevron. Handwritten notes to meeting.
55 Tintera, J. (1995). Letter to Guy Grossman, District Director, Railroad Commission of Texas from John
James Tintera, Assistant Director, Site Remediation, December 7,1995.
56 Boyt, J. (1995). Memorandum to Chairman Rylander, Commissioner Williamson, and Commissioner
Matthews from Jeb Boyt, Staff Attorney, Railroad Commission of Texas, December 8,1995.
11
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testing, sampling, analysis, timetable, etc. to him."57 By December 15, Chevron's
methane investigation was ongoing with what had become four gas wells installed.58
Testing continued at predetermined intervals from mid-December 1995 to February 15,
1996. Preliminary data yielded 4,000-5,000 parts per million methane recovered from
the monitor wells over the pits. This was far below the level that RRC considered
"explosive" (50,000 ppm) but it was believe to be "a greater concentration than Chevron
anticipated measuring."5 Data also showed 2 of 25 samples in excess of 1% TPH.60 As
Chevron periodically repeated its sampling procedures, a ritual ensued where RRC Site
Remediation personnel would unlock the wells, monitor sampling activities along with
plaintiffs' representatives, and request split samples when visual contamination was
noted. Occasional problems were reported. For example, instrument problems at the
laboratory used by RRC meant that certain samples had to be shipped to a Corpus Christi
lab for analysis.61 These samples were shipped to Corpus Christi, then to Louisiana, and
then back to Corpus Christi. RRC officials questioned the integrity of such samples,
and were told that there would be no charge for them.63 On another occasion, Chevron
told the other parties that a sample was insufficient and wanted to re-sample, RRC
representatives noticed visible contamination in the sample "and insisted and received
split samples with residents."64 Another problem concerned the effects of the wells
themselves on samples and readings for methane. In mid-January 1996, field reports
indicated that 3 of the 4 monitoring wells had partially filled with water. RRC officials
indicated that they would ask Chevron about *Svhat effect the water is having on the
integrity of the testing."65
Methane testing ended with samples showing a maximum of 23,000 ppm methane at 5
feet, taken in an area where plaintiffs also encountered high levels. RRC personnel
reported that surrounding tests indicated that such comparatively high concentrations
were localized.66 Elevated TPH was found at levels up to 5,990 parts per million (recall
37 Schaible, B. (1995). Electronic mail to COMW.DEESJ, RED.BeshearD, White.ScottB, OG.Tinteraj,
OG.EatonT from Brian Schaible regarding Kennedy Heights, December 8,1995,12:08 p.m.
58 Tintera, J. (1995). Electronic mail to RED.KeIlyM, RED.BeshearD, COMW.DEESJ,
COM.HACHTMA, CARLICKD, WrotenberyL, EatonT, RossC, and IC.SCHAIBLEB from John J. Tintera
regarding Kennedy Heights Update, December 15,1995,3:42 p.m.
99 Tintera, J. (1996). Electronic mail to KH from John J. Tintera regarding Kennedy Heights Status Update,
January 10,1996,9:13 a.m.
60 Tintera, J. (1995). Electronic mail to KH from John J. Tintera regarding Upcoming Activities at
Kennedy Heights, December 21,1995,11:52 a.m.
61 Correa, A. (1996). Electronic mail to MIERTSCHINW and OG:RRC:RRC.OG (TINTERAJ) from Art
Correa regarding KH Core Lab Samples - Reply - Reply - Reply, January 17,1996,8:55 a.m,
62 Correa, A. (1996). Electronic mail to MIERTSCHINW and OG:RRC:RRC.OG:TINTERAJ from Art
Correa regarding KH Core Lab Samples - Reply - Reply - Reply, January 17,1996,9:28 a.m.
63 Ibid
** Supra note 48.
" Correa, A. (1996). Electronic mail to MIERTSCHINW and TINTERAJ from Art Correa regarding KH,
January 24,1996,2:33 p.m.
66 Tintera, J. (1996). Electronic mail to Kennedy Heights from John J. Tintera regarding Kennedy Heights
Status Update, February 16,1996,8:35 a.m.
12
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that preliminary data in two samples showed 10,000 ppm, or 1% TPH).67 By the close of
the investigation, the highest concentrations of TPH found by Chevron and RRC were
29,000 ppm and 24,000 ppm, respectively. Exploration Technologies, Inc. (a consulting
firm hired by the plaintiffs) found levels as high as 32,060 ppm, in addition to "liquid
product" (crude oil) at several locations.68 It is difficult to draw conclusions directly
from these numbers in terms of required regulatory action, particularly since the finding
of liquid product was never officially verified by the RRC. For instance, a 1993 RRC
rule provided for cleanup of "non-sensitive" areas when TPH levels exceeded 10,000
ppm.69 Kennedy Heights was a sensitive area, implying that a lower threshold should be
applied, albeit with adherence to specific risk-based decision making rules and
procedures.70 This was suggested by RRC District Manager Guy Grossman.71 However,
the rule (Statewide Rule 91) did not apply to spills that took place before November 1,
1993. For spills that did qualify for cleanup under the rule, RRC provided the folio whig
advice:
Statewide Rule 91 distinguishes two categories of spills: (a) crude oil spills into non-sensitive
areas; and (b) (i) hydrocarbon condensate spills and (ii) crude oil spills in sensitive areas. Rule 91
establishes clear goals for cleanup of crude oil spills in non-sensitive areas: immediate removal of
all free oil, immediate vertical and horizontal delineation; specifying the "area of contamination"
that must be delineated and disposed of or remediated, and specification of a final cleanup level of
"l%by weight TPH." Rule91 is less clear about the second category of spills. It stands to reason
that hydrocarbon condensate spills and crude oil spills in sensitive areas, which pose greater risks,
should at least follow standards established for the equally important but less threatening spills,72
Yet the same residential and industrial limits are given for TPH and BETX, a group of
particularly toxic compounds associated with the processing of crude oil (benzene,
67 Tintera, J. (1996). Electronic mail to KH from John J. Tintera regarding Kennedy Heights Status Update,
February 21,1996,2:48 p.m.
68 A map of bore hole locations over the NE pit (which is bisected by Murr Way and Lockgate Lane)
indicates that "liquid product," or crude oil, was found at 11302 Murr Way (at 8-10 feet), 11303 Murr Way
(24 feet), 11315 Murr Way (10 and 26 feet), 11323 Murr Way (6-9 feet), 11322 Murr Way (5-8 feet), and
11323 Lockgate Lane (8-10 feet). Exploration Technologies (1995). Bore Hole Locations, Pit Number 1,
Prepared for O'Quinn, Kerensky, McAninch & Laminak, August 15,1995. During joint testing by RRC
and Chevron, ETI workers asked a RRC official for permission to demonstrate where the liquid product
was located, and were told that they lacked a work plan and had not submitted one in the requisite number
of hours preceding their sampling activities on site. Interview with Exploration Technologies employee,
December 17,2002, via telephone. On December 13,1995, RRC notes suggest this encounter: "Plaintiffs
want to spl (core soils) w/in and adj. to Chevron monitoring well @ 11323 MW. We have mtg. - Chevron
say core rig disturb their well. I say we are implement Chevron plan and want to maintain interpret of
Chevron data - but the next round of assessment we may address this. Plaintiffs can core other places as
long as they stay away from Chevron well." Railroad Commission of Texas (1995). Handwritten field
notes for December 13,1995.
69 Statewide Rule 91 criteria are for crude oil spills in "non-sensitive" areas and include the following
requirements: removal of all free oil immediately according to SWR 91 guidelines, horizontal and vertical
delineation of all areas with more than 1% TPH (10,000 ppm), and proper reporting. Amuchmore
involved process for addressing sensitive areas has been developed by RRC, called the Risk-Based
Decision Making (RBDM) program. Railroad Commission of Texas (2001). Guidelines for Spills,
Releases, and Risk Based Decision Making for Oil Field Related Sites in Texas, June 21,2001.
TO%>ranote42.
71 Ibid.
72 Supra note 69.
13
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ethylbenzene, toluene, and xylene). Another regulation governing sites similar to
Kennedy Heights is Statewide Rule 8, also known as the "no pit rule." Rule 8 provides
that "no person conducting activities subject to regulation by the Commission may cause
or allow pollution of surface or subsurface water in the state." Before this rule was
adopted in 1969, open pit storage of crude oil as well as the disposal of salt water and
chemicals (including arsenic, barium, and cadmium) in open pits was standard practice.
Plaintiffs argued that certain PAH's identified at Kennedy Heights were "hazardous
substances" according to the Comprehensive Environmental Response, Compensation
and Conservation and Recovery Act (CERCLA).73 CERCLA does not impose any
quantitative requirement when liability under the statute for release or threat of a release
of a hazardous substance is determined.74 The standards for encouraging agency action
differed from the liability standards to which the parties would be held at trial.
In March 1996, RRC met with Chevron to discuss the second phase of the investigation.
Chevron's plan included an evaluation of all three former pits with ten shallow
groundwater monitoring wells, 33 hollow stem auger soil samples, and 24 cone
penetration tests. The overall goal of this phase of the investigation was to "conduct a
detailed toxicological risk assessment that will address the presence and distribution of
contaminants, any exposure risk to residents, and surface or subsurface water
pollution."75 Sixty days of fieldwork were planned to gather data that would allow for a
more comprehensive investigation of site contamination. RRC and Chevron worked out
field operations so that representatives would be present for surveying, probing, and
sampling. Again, RRC officials describe budgetary constraints that "will limit us to five
samples."76 The parties started with the NW pit for one week, and then moved into the
neighborhood.
By this time, residents and a series of named defendants (including Chevron and Gulf
companies and subsidiaries, developers, construction companies, investors, and
investment trusts) had begun to prepare for trial. Consultants for both sides began testing
for PAH's, some of which are known carcinogens.77 Results were gathered by such firms
73 Plaintiffs' Motion for Summary Judgment on the Scientific Significance of the Quantity, Scope, and
Density of Contamination as it Relates to the Risk to Health for the Residents of Kennedy Heights Pursuant
to the Court's March 5,1997 Order, Adams et al v. Chevron U.S.A. et al (H-96-I462) (S.D. Tex, April 10,
1997).
74 Ibid.
75 Supra note 48.
76 Correa, A. (1996). Electronic mail to MIERTSCHINW and TINTERAJ from Art Correa regarding Bids
for KH Sampling, March 22,1996,10:41 a.m. ("As of 10:00 a.m. we have received three bids. The low
bidder is a hub - Chemsolve from Austin. Bid is for $481 for either fluid or soil samples. The amount we
are authorized will limit us to 5 samples. Bids have been signed and amounts double checked for accuracy.
Any suggestions on what criteria we can document to award it as lowest and best bidder. Bidding is
officially closed at 10:10 a.m. after checking fax maching and with SR & SRT personnel from any other
bids.")
77 The Agency for Toxic Substances and Disease Registry explains that "The Department of Health and
Human Services has determined that some PAHs may reasonably be expected to be carcinogens. Some
people who have breathed or touched mixtures of PAHs and other chemicals for long periods of time have
developed cancer. Some PAHs have caused cancer in laboratory animals when they breathed air
containing mem (lung cancer), ingested them in food (stomach cancer), or had them applied to their skin
14
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and individuals as Exploration Technologies (ETI)78> Research Statistics, Inc.79, and Dr.
Jack Matson.80 Health effect and symptom surveys were conducted by Dr. Dick Clapp,
an epidemiologist from Boston University81 and researchers from the University of Texas
at Galveston. Residents' representatives began to piece together a story for trial:
during periods of depressurization, caused when breaks in the pipes or repairs occurred,
contaminants entered the water pipes, located at a depth below the surface where some of
the highest levels of contaminants were found. Water main breaks occurred within
Kennedy Heights at a rate of 20-30 breaks per mile per year.83 The contaminants
included several known animal carcinogens, including a number of aromatic hydrocarbon
compounds. One of the areas of the body affected by exposure to polycyclic aromatic
(skin cancer)." Agency for Toxic Substances and Disease Registry (1996). ToxFAQs for Polycyclic
Aromatic Hydrocarbons, httix/Avww,atsdr.cdc.gov/tfacts69.htm, accessed April 9,2002.
78 Preliminary results showed that samples from Kennedy Heights matched with samples of Pierce
Junction's oil. ETI also produced a series of contour maps detailing estimates for methane, TPH, and other
chemical concentrations. TPH was found as high as 9,925 ppm at 4-6 feet on Murr Way. Exploration
Technologies, Inc. (1996). Preliminary Environmental Site Assessment, Kennedy Heights Subdivision,
Houston, Texas. Prepared for O'Quinn, Kerensky, McAninch, and Laminack, Houston, Texas, January 29,
1996.
79 Concluded that "The residents of Kennedy Heights, present and former, have not been exposed, if at all,
to concentrations of polycylic aromatic hydrocarbons sufficient to produce any diseases or dysfunctions,
acute or chronic, including cancer of any form." Pier, S. (1996). lexicological Report prepared for Clade
R. Treece, Esq., Gardere Wynne Sewell & Riggs, L.L.P. by Stanley M. Pier, Ph.D., Research Statistics,
Inc., October 28, 1996.
80 Found that "crude oil constituents from tank bottoms entering the drinking water system are distributed
to homes in a short period of time." The primary mechanism for the transport of hydrocarbons was "entry
from suspension in water surrounding a main break." Also found that methane had evolved from the
conversion of tank bottom hydrocarbons and represented "an explosive threat to residents within the Pit
Number One area (Northeast Pit)." Matson, J.V. (1996). Expert Report: Environmental Conditions at
Kennedy Heights Subdivision, Houston, Texas. Prepared for O'Quinn, Kerensky, MacAninch, and
Laminack by Jack V. Matson, Ph.D., P.E., Consulting Environmental Engineer, October 1,1996.
81 Richard Clapp, MPH, D.Sc., with Boston University, reviewed a report by Meta Environmental, Inc. and
testing done in September, 1996, which found several substances which are animal carcinogens "and
therefore may be expected to cause cancer and other toxic effects in exposed humans." He also calculated
prevalence rates for systemic lupus erythematosus (SLE), and compared his results with estimates of
prevalence in whites and African-Americans in the U.S. National prevalence rates ranged from about 10-
50 cases per 100,000. His estimate for the combined (current and former) population of homes in Kennedy
Heights to be 2,435, of which 10 cases of SLE were reported. The prevalence of SLE in the combined
population was estimated at 411 per 100,000, or between 4.9-8.2 times the upper end of the range of
prevalence of SLE in the U.S. population. Clapp concluded that since the lower end of the confidence
interval for his estimate was still more than three times higher than the upper range for the U.S. population,
the results were not likely to be due to chance fluctuation. Clapp, R. (1996). Repot of Richard W. Clapp.
October 1, 1996.
82 A symptom survey was completed by 72 residents. Within this group there were ten reported cases of
cancer as well as eleven reported cases of benign tumors. There were 26 reported problems with
pregnancies (out of 90 experienced by the group). The group also reported 350 symptoms of central
nervous system problems as well as 108 immune system-related ailments or conditions. The toxicologist
responsible for the survey stated that "PAH's and naphthlamines are known to cause serious health effects.
When these effects are exhibited by the plaintiffs, it is my opinion, to a reasonable scientific probability,
that these chemicals caused or significantly contributed to the adverse health effects suffered by the above
trial plaintiffs." Legator, M. (1996). Addendum to Symptom Survey. Prepared by Marvin S. Legator,
Ph.D., University of Texas Medical Branch at Galveston.
83 Supra note 80.
15
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hydrocarbons is the immune system.84 Lupus, a disease in which the immune system
loses its ability to tell the difference between foreign substances and its own cells and
tissues, was prevalent in Kennedy Heights at a rate that was several times the national
rate.85 Other diseases linked to some of the known or suspected carcinogens in the soil
were also prevalent in the subdivision. Some of the diseases, including lupus, were not
known to be in the family histories of those who suffered from them.
In response to concerns about drinking water, Chevron's Comprehensive Work Plan was
drafted to include a proposal to collect samples from the outside hose bibs of 13 selected
homes "as soon as reasonably possible, but no later than 24 hours after a water line break
has been repaired in the Kennedy Heights subdivision."86 The company also offered free
drinking water testing to residents whose homes were located in the general area of the
NE pit. Plaintiffs were opposed to the sampling program, claiming that it was "unlikely
to detect contamination at any home not affected by a specific pipeline break."87 More
importantly, it would have "limited utility in determining how much contaminated water
has entered homes in Kennedy Heights during the last twenty-five years."88 As
preliminary fieldwork for the Work Plan commenced, relations among the parties soured.
Residents picketed some of the testing activities, claiming that RRC was responding at a
slower pace to their concerns than to problems with a former crude oil storage site near
the Memorial Glen subdivision south of Humble, Texas.89 The Houston District Office
of RRC was forwarded approximately 80 letters from residents, originally mailed to the
84 Supra note 81.
96 Flour Daniel GTI (1996). Comprehensive Work Plan for Kennedy Heights Subdivision, Houston, Texas,
Third Draft, prepared for Chevron U.S.A. Production Company, October 18, 1996.
87 Bell, A.E. (1996). Letter to Terri Eaton, Assistant Director, Environmental Section, Railroad
Commission of Texas, Office of General Counsel from Allen Eli Bell, Bernsen, Jamail and Goodson,
L.L.P., June 4, 1996.
89 On at least two occasions, RRC officials assembled data regarding site investigation on other pits within
their jurisdiction. These included Memorial Glenn (the Landslide site), which was adjacent to a
subdivision ("Texaco had crude oil storage pits dating from the 1920's with liquid crude exposed to the
surface. No residences were involved. Remediation was a stabilization program where the pit contents
were solidified on site"); Wilson Court, in Humble a few miles south of Landslide ("Numerous large crude
oil storage pits dating from the 1920's were partially backfilled on a 104 acre site. Liquid hydrocarbons
were seeping to the ground surface. Current pilot program is a bioremediation/landfarm effort on 19 of the
104 acres"); and the Sun site ("four large and several smaller crude oil storage pits at the site again dating
from the 1920's, a few miles south of Wilson Court. The pits were open and exposed to the surface. A
bioremediation project is currently being conducted for closure")- Tintera, J. (1996). Electronic mail to
IC.SCHAIBLEB from John J. Tintera regarding Remediation project info - Reply, April 4, 1996 10: 19
a.m. This information was garnered in response to requests from the media as well as State Senator
Rodney Ellis' office. Ellis' Chief of Staff was most concerned about the "Texaco Humble Pits" and
whether they were similar to the Kennedy Heights site, as well as the length of time between discovery and
site closure. In reply, RRC maintained that "The age and use of the Humble pits are similar to KH,
however many of the Humble pits were open at the surface and had not been backfilled. Residences were
adjacent, not within, the pit boundaries. Elevated methane concentrations were not reported. Similar
investigation activities were required, which included the installation of water monitor wells and extensive
soil sampling." Tintera, J. (1996). Electronic mail to IC.LawsonS from John J. Tintera regarding Sen. Ellis
Kennedy Heights Info Request (and attached answers to information request by Chief of Staff William Paul
Thomas), March 27, 1996, 10:50 a.m.
-------
TNRCC, requesting cleanup of contamination at Kennedy Heights.90 Fifty residents
attended a technical meeting regarding Chevron's Work Plan, again questioning the risk
assessment and its ability to appropriately characterize sporadic contamination entering
residential lines after water main breaks. At a pre-hearing conference in Houston,
residents' attorneys claimed that the hearing process lacked clear ground rules, standards,
and a clear burden of proof.92 The residents withdrew from the hearing, but implored
RRC to continue its efforts, citing "ample technical data available to support enforceable
remediation measures."93 Residents would rely predominantly on the courts, under the
belief that a "federal judge will move faster than RRC."94
Upon conclusion of sampling over each pit by various consultants, RRC prepared
summaries of contamination that was found. Tables 3-5 provide an overview of the
highest concentration of various types of compounds, as summarized by RRC.
90 Tintera, J. (1996). Electronic mail to COMW.OGJjREENSHEET from John J. Tintera regarding
Kennedy Heights Correspondence, May 9,1996,2:47 p.m.
91 Tintera, J. (1996). Electronic mail to COMW.OG_GREENSHEET from John J. Tintera regarding
Kennedy Heights, May 23,1996, 2:41 p.m.
92 Tintera, J. (1996). Electronic mail to EatonT, LG.JohnsonB, LG.FowlerL, SchieckD, Wrotenb... from
John J. Tintera regarding Kennedy Heights Pre-Hearing Conference, November 17,1996,12:45 p.m.
93 Ibid.
94 Ibid.
17
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Table 3. Highest Concentration Found as Proportion of TNRCC Regulatory Limit, NE Pit (ppm).
TPH at
Surface
TPH
voc
s-voc
Total Metal
SPLP VOC
SPLP S-
VOC
SPLP Metal
Chevron
1,453
29,000*
43.49*710.7
(Methylene
Chloride)
39.18/45.7
(Bis 2-ethyIhexyl
phthalate)
11.7*7.366
(Arsenic)
2.99*A005
(Methylene
Chloride)
.021*7.006
(Bis 2-ethylhexyi
phthalate)
.24/2.0 (Barium)
RRC
800
24,000*
ET1
7,797
9,720
.212*71.33
(Benzene)
25/1.0 (Toluene)
33*7.00608 (Bis 2-
ethylhexyl)
2.5*7.366
(Arsenic)
City
590
PSI
.009*7,005(1,2
dichloroethane)
-037A005
(Methyl
Chloride)
2.649*7 .00608
(Bis 2-
ethylhexyl)
.450*/.366
(Arsenic)
,004*7.002
(Mercury)
1.772.0 (Barium)
2351*7300
(Sulfates)
DWVOC, - - - - .0167.1
S-VOC, (Chloroform),
Metal .012*7.00608
(Bis 2-
ethylhexyl),
.0017.05
(Arsenic)
TPH = Total Petroleum Hydrocarbons
VOC = Volatile Organic Compound
S-VOC = Total Volatile Organic Compounds
SPLP = Synthetic Precipitate Leaching Procedure, an analytic method to determine the mobility of compounds in soil
DW = Drinking Water
- = no hit or test for this compound
* = above TNRCC regulatory limits (number below / represents limit); numbers for TPH with a * are above RRC guidelines for non-
sensitive areas; at the time, sensitive areas were assessed on a case-by-case basis
18
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Table 4. Highest Concentration Found as Proportion of TNRCC Regulatory Limit, NW Pit (ppm)
, "»• ,*<, ' : w;- v/Oiwn ,'.,-., • ' /. .me ' ",-• <-• -:- VHSU--^:>* '-
TPH at
Surface
3,674
1,100
636
voc
36.63*/10,?(Methytene
Chloride)
Total Metal
li,4*/366 (Arsenic)
2.5*A366 (Arsenic)
SPLPS-
VOC
XK)68*/.006(Bis2-
ethylhexyi phthalate)
TPH « Total Petroleum Hydrocarbons
VOC = Volatile Organic Compound
S-VOC - Total Volatile Organic Compounds
SPLP = Synthetic Precipitate Leaching Procedure, an analytic method to determine the mobility of compounds in soil
TCLP = Toxicity Characteristic Leaching Procedure, an analytic method to determine metal mobility
- = no hits or test for this compound from samples taken
* = above TNRCC regulatory limits (number below / represents limit); numbers for TPH with a * are above RRC guidelines for non-
sensitive areas; at the time, sensitive areas were assessed on a case-by-case basis
Table 5. Highest Concentration Found as Proportion of TNRCC Regulatory Limit, SE Pit (ppm)
Surface
'!$£'
VOC
24
5.99/1 0,7 {Methylene
Chloride)
200
31
8 :
Total Metal
12.1*/.366 (arsenic)
SPLPS-
VOC
.OH98*/.006{Bis2-
etliylhexyl phtlialate)
TPH = Total Petroleum Hydrocarbons
VOC = Volatile Organic Compound
S-VOC * Total Volatile Organic Compounds
SPLP = Synthetic Precipitate Leaching Procedure, an analytic method to determine the mobility of compounds in soil
TCLP = Toxicity Characteristic Leaching Procedure, an analytic method to determine metal mobility
- = no hits or test for this compound from samples taken
* = above TNRCC regulatory limits (number below / represents limit)
While certain compounds were found at levels exceeding regulatory standards, RRC
determined, through analysis of a risk assessment performed by Chevron, that the levels
of contamination did not pose a sufficient threat to human health to warrant remedial
action. Prior to completion of Chevron's Work Plan, the RRC responded to concerns
19
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expressed by State Senator Rodney Ellis regarding the anticipated risk assessment. The
Assistant Director of the Environmental Section of the RRC characterized risk
assessment as follows:
No single risk assessment model will account for site-specific variables in all cases, including
those at Kennedy Heights. However, risk assessment techniques are designed to be adjusted to
accommodate site-specific variables. Commission staff has experience evaluating site-specific
risk assessments, including assessments of risk to nearby residents from surface and subsurface
contaminants. It a thorough risk assessment of the residual contamination at Kennedy Heights
indicates that the residents are or may be exposed to constituents of concern at unacceptable
levels, appropriate remedial measures will be required.95
RRC's evaluation of Chevron's risk assessment led them to conclude that residents were
not exposed to unacceptable levels of hydrocarbons. Residents were left to seek relief
through the courts.
The Dispute
The procedural history of the lawsuit began when the original suit, John R. Simmons et
al. v. Chevron U.S.A., was filed in state district court on March 24,1995.96 In August
1995, plaintiffs' property claims were bifurcated from the personal injury case and set for
trial on January 8,1996. Judge William Bell recused himself from the case, which was
reassigned to Judge Tony Lindsay, who was disqualified for ownership of stock in
Chevron. The case was transferred to Judge Lamar McCorkle. At that point, the state
court cause of action was removed to federal court (under Judge Sim Lake) and
eventually consolidated into Adams et al v. Chevron et al (under Judge Kenneth Hoyt).97
Plaintiffs in the Adams case alleged that the three pits upon which the Kennedy Heights
Subdivision had been built were utilized, stored, removed, and filled in an unreasonably
dangerous and unlawful manner.98 They claimed that chemicals from these operations
had volatized and remained in the soils and groundwater in toxic and explosive
quantities, exceeding federal and state regulatory limits. Further, it was believed that
"these chemicals and other unknown chemicals have infiltrated the water supply and may
infiltrate the water system servicing the residents in and around the site."99 It was argued
that defendants failed to disclose or falsely represented the historical uses of the site and
presence of residual contamination in order to obtain government financing that would
facilitate the purchase of the property from Chevron. The manner in which defendants
93 Eaton, T.K. (1996). Letter to William-Paul Thomas, Chief of Staff, Office of Senator Rodney Ellis from
Terri K. Eaton, Assistant Director, Environmental Section, Railroad Commission of Texas, Office of
General Counsel, June 7,1996.
96 Plaintiffs' Sumary of the Case, Adams et al. v. Chevron U.S.A., Inc. et al., 96-CV-1462 (S.D. Tex.
September 10,1997).
97 Order Granting Motion to Consolidate Cases, Adams et al. v. Chevron U.S.A., Inc. et al, 96-CV-1462
(S.D. Tex. August 6,1996).
98 Plaintiffs' Original Complaint, Adams et al. v. Chevron U.S.A., Inc. et a/., #96-CV-1462 (S.D. Tex. May
6,1996).
99 Ibid, & 5.
100 Plaintiffs' Second Amended Complaint, Adams et al. v. Chevron U.S.A., Inc. etal.t #96-CV-146(S.D.
Tex. October 1, 1996).
20
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could be held negligent was outlined, in addition to allegations of nuisance, trespass,
toxic assault and battery, fraud, misrepresentation, concealment, failure to disclose
material facts, conspiracy, and other claims. Residents sought damages for physical,
mental, medical, property, and punitive damages, as well as attorneys' fees, expert fees,
and other costs. The primary defendant, Chevron, argued that no liability existed for any
of the alleged damages, many of which they claimed were speculative, due to risks
assumed by plaintiffs, related to conditions that Chevron did not have control over,
barred under the statute of limitations, and barred because they were not addressed by
plaintiffs hi a manner consistent with the National Contingency Plan for dealing with
contaminated sites.101
The complexity and cost of preparing for the case grew seemingly exponentially as routes
of exposure, computer simulations, a variety of sampling protocols, and lab tests were
each pursued. Analysis of various aspects of the site reached a fevered pitch by October
1,1996, when a series of consultants' reports were made available to either the plaintiffs
or Chevron, covering everything from human factors102 to historical aerial photograph103
to sociological104 to forensic architectural105 to toxicological106 to fate and transport to
property value107 analysis. Chevron continued to meet with the Railroad Commission,
101 Affirmative Defenses and Answer to the First Amended Complaint, Adams et al v. Chevron U.S.A.,
Inc., H-96-1462 (N.D. Tex. July 12,1996).
102 For example, a human factors psychologist argued that when addressing residents, "Chevron failed to
take into account important characteristics of the population - their beliefs, history, and lack of
sophistication with regard to chemical dangers and routes of exposure. In assuring the residents that there
were no toxins buried on the site, they were using language to attempt to deceive the scientifically naive
residents of Kennedy Heights (toxin is a specific term meaning a poisonous animal or plant substance)."
She further characterized Chevron's use of the media as "intended to increase the residents' feelings of
helplessness and to influence public opinion." Laux, L. (1996). Letter to Carl Shaw, O'Quinn, Kerensky,
McAninch and Laminack from Lila F. Laux, Ph.D., Human Factors Consulting, September 23,1996.
103 For instance, the plaintiffs asked Robert Maggio to review aerial photographs of the Kennedy Heights
area from 1930-1996. Maggio, R.C. (1996). Expert Report of Dr. Robert C. Maggio in Case No. 95-
14770, John R. Simmons et al. v. Chevron U.S.A., Inc. et al. October 1,1996.
104 Sociologist Steven Couch referred to the belief among Kennedy Heights residents that there is
environmental contamination as a "culture of distress" that included severe uncertainly about the extent and
scope of contamination, powerlessness, pervasive fear, constant vigilance, stigma, social isolation,
disillusionment, anomia (the belief that following societal rules will not lead to the ends people wish to
achieve), alienation, anger, blame, mistrust, social conflict, preoccupation with contamination-related
problems, changes in the meaning of "home," and stress resulting from "the endless nature of the problem."
Couch, S.R. (1996). Letter to Dr. John P. Wilson, Department of Psychology, Cleveland State University
from Stephen R. Couch, Ph.D.
105 An engineering report by Peverley Engineering Inc. found mat a number of homes on Murr Way
required foundation repairs. Peverley, R.W. (1996). Forensic Examination of the Structural Foundations
of Selected Residential Buildings Which are a Part of the Kennedy Heights subdivision, Houston, TX.
Pevereley Engineering Inc., September 26,1996.
106 For example, Dr. Richard Irons with the University of Colorado reviewed the environmental testing data
garnered prior to October 30,1996. He said that samples containing detectable amounts of flourene,
chrysene, or phenanthrene did not represent PAH's that are among the 15 for which sufficient evidence of
carcinogenicity exists in animals. Irons, R. (1996). Letter to Robert Scott, Esq., Adams, Scott, and
Bickley, L.L.P. from Richard Irons, Ph.D., Director, University of Colorado Health Sciences Center,
October 30,1996.
107 For example, one report compared survey results from Kennedy Heights and control areas regarding
attitudes about property values and residents' desire to move. The survey, taken via telephone in
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which in Texas had nearly sole jurisdiction over matters of petroleum production,
transport and related hazardous waste sites, to develop and execute their comprehensive
work plan,
As with many mass torts cases, community representation became a source of contention.
Attorneys represented groups ranging from between a handful of claimants and several
thousand residents, some who had not lived in Kennedy Heights for a number of years.
Some of the initial motions filed in this case dealt with how such a case, where exposure,
physical manifestations of ailments, and corresponding damages were uncertain and
unevenly distributed, could be fairly tried. On December 19,1996, an order establishing
trial plans and resolving some of these dilemmas was issued.108 Thirty bellwether
plaintiffs were chosen, 15 by each side, and the case proceeded with a focus on individual
claims and the issue of the existence of liability on the part of Chevron for pollutants that
gave rise to claims under CERCLA, RCRA, the Safe Drinking Water Act, the Clean
Water Act, the Oil Pollution Act, the Fair Housing Act, and the Civil Rights Act of 1983.
Defendants argued that such a selection process would not allow for the trial to consider a
representative group of plaintiffs, as they were not similarly situated.109 Further,
defendants claimed that the solution of a bellwether trial might place intense pressure on
them to settle if the plaintiffs experienced illnesses and suffered injuries that were not
representative of the now more than 3,000 residents involved.110 The defendants
proposed stratified random sampling as an alternative means of selecting bellwether
claimants. Due to the extensive history of the case, Chevron's previous lack of attempts
to modify the proposed trial plan, and the court's discretion in choosing how to bifurcate
or trifurcate liability, general causation, and individual causation, defendants' writ of
mandamus was denied and the trial proceeded.111 However, the 5th Circuit prohibited the
trial judge from using the results of a trial of the 30 plaintiffs to establish issue or claim
preclusion hi the case.112
As the trial advanced through 31 days of testimony by plaintiffs' witnesses and cross-
examination by attorneys predominantly for Chevron, several facts of the case became
clear: (a) the residents of Kennedy Heights had not been aware of the former use of the
November and December 1995, suggested that few residents rated their environmental quality as "low"
(11.8%). It also analyzed price trends for housing at various distances from the storage tanks. The results
did not show that homes closest to the tank were selling at a discount to homes more distant from the pits.
However, significant news coverage of the story occurred in February 1994 (results of tests of residents'
contractor mentioned and the Health Department contended that petroleum-related chemical concentrations
were not of concern) and did not reappear until April, 1995 (when it was ruled that continued digging in
Kennedy Heights created a substantial risk). Chalmers, J.A. (1996). Expert Report on Kennedy Heights
Property Value Analysis. Coopers & Lybrand, L.L.P., October 30,1996.
108 Order Granting Motion to Determine Trial Plan, Adams et al v. Chevron U.S.A., Inc. et al (96-CV-
1462) (S.D, Tex. December 19,1996).
109 Supplemental Brief by Chevron USA Inc., Gulf Oil Corporation, Gulf Refining Co., Gulf Pipeline Co.,
Gulf Production Co. in support of its recommendation on the trial of this case, and supplemental response
to Plaintiffs* statement of case and request for ratification of Bellwethers, Adams et al v. Chevron U.S.A.,
Inc. et al. (96-CV-1462) (S.D. Tex. November 1,1996); Petition for Writ of Mandamus, Adams et al v.
Chevron U.S.A., Inc. et al. (96-CV-1462) (S.D. Tex. December 19,1996).
110 Ibid.
111 Supra note 108.
112109 F.3d 1016,1017 (5th Cir. Mar. 1997).
22
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site, (b) residual contamination from a prior use of the site for crude oil storage was
present in the soil, (c) the presence of certain substances in the soil could be linked to the
Pierce Junction well owned by Gulf Oil (which transferred liability to Chevron), and (d)
there was a cluster of disease in the subdivision, particularly in the vicinity of the NE pit
(although there were strong differences over whether this cluster had anything to do with
environmental contamination). While these facts were relatively easy to demonstrate,
[Cjausation was going to be a difficult issue. Essentially, you may have a toxin, and it may have a
vehicle by which it could reach the victims but the measuring of what level of intake would be
required to cause certain manifested injuries, the science was not as aggressive as the accusations,
and so I felt that that was going to be difficult. We believed that it would be easy to show die
presence of the toxins. We believed it would be easy to show how the toxins were being delivered
to the victims. Quantifying the delivery system and qualifying the amounts of the toxins in a
diluted substance were going to be incredibly difficult because the science was just not established
with the requisite level of certitude.. .[I]f s the tried and true plan of strategy of starting with
damages and using the Cartesian formula that there is a cause and effect. We knew that we had an
effect. We had the injury, and we had the search for the cause, and when you have cumulative
effects that have a certain pattern, we use science as probabilities that if you have a common
occurrence that is the effect, there should be in all reasonable probability a common cause, and so
we used the strategy of going for the effect first, because that we could prove with certainty, and
then the causal link we thought would necessarily follow if the Cartesian formula was correct.
The mind would beg for a cause if you could establish the existence of the effect... Our victims
were the predominant vessels of the effects. They had the lupus that had been fully diagnosed by
scientists who had no prejudice one way or the other in the case. And their proximity to each
other, those were easily establishable facts. They were close to each other, they all had lupus-like
and lupus diseases.113
When the case shifted from the presence of certain effects, such as disease rates, to the
other end of the Cartesian formula, problems arose. Doubt was cast particularly on the
plaintiffs' witnesses charged with generating a computer model and theorizing how
toxicants were moved from waterlines to residents* sinks and bathtubs. For much of this
work, plaintiffs retained Charles Howard & Associates. Howard was a consultant to
water, sewerage, and power utilities, as well as local, state, and federal governments
across North America, in the development and use of computer techniques for water
management. After taking field measurements of water pressure at various points across
the distribution system in Kennedy Heights, Howard used EPANET, a computerized
water distribution system simulation developed by the Environmental Protection Agency,
to model the fate and transport of contaminants to plaintiffs' homes.114 Based on the
introduction of 1 g/m2 of a contaminant to a hypothetical pipe break along the network,
EPANET was modeled to provide estimates of contaminant concentrations at certain
locations, given in maximum levels within each hour in mg/1 over a 24-hour period.
Assuming that contaminants entered the system during water main repairs, Howard
modeled concentrations at various points along water pipes and at certain bellwether
homes after a hypothetical repair at 11322 Murr Way or 11322 Lockgate Lane.115 His
113 Interview with Attorney for Plaintiffs in Adams et al. v. Chevron USA et al., April 18,2002, in Houston.
114 Howard, C.D. (1996). Letter to Carl D. Shaw, O'Quinn, Kerensky, McAninch & Laminack from
Charles D. Howard, Charles Howard & Associates, Ltd., September 30,1996.
115 Plaintiffs took water samples and samples of "oil floating on the surface of the water and entering a pipe
during a pipe repair" after a pipe break at 11326 Lockgate Lane in September 1996. They found PAH
23
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findings suggested that between .027 and 5,082 mg/L of contaminant would be found in
pipe 4243, which delivered water to seven of the bellwether plaintiffs' homes, over the
course of a 24 hour period following introduction of the contaminant into a pipe at 11322
Murr Way. Chevron questioned many of the assumptions underlying the model itself as
well as Howard's choice of inputs into the model.'
Despite numerous challenges against many of their expert witnesses, plaintiffs were able
to present and enter into evidence most of the data that they had gathered. However, as
they neared completion of their presentation of the case, an unexpected series of events
unfolded. First, the fifth judge assigned to the case, Kenneth Hoyt, recused himself after
weathering a series of accusations of bias from Chevron and (according to plaintiffs1
attorneys) other outside pressures. Plaintiffs accused Chevron of "forum shopping" and
cited evidence of defendants* efforts to avoid compliance with the court's discovery
orders.117 Chevron maintained that Hoyt had shown favoritism for the plaintiffs and
made biased comments, primarily during bench conferences.118 The Fifth Circuit Court
of Appeals was not entirely persuaded of the existence of prejudice.119 However, "in the
interest of justice," Hoyt disqualified himself and declared a mistrial in August 1997.120
Dispute Resolution
The final judge to be assigned to the case, David Hittner, focused hearings on several
issues following the mistrial121:
1. How best to proceed with a trial plan:
a. Make use of a similar bellwether claimant selection process to what had
been tried to date (plaintiffs preferred that a trial proceed for the 29
previous bellwethers or a representative subset, with the court
concentrations of 2.4 ppm in the water and 7,826 ppra in the oil. Plaintiffs' Summary of the Case, Adams
et al v. Chevron V.S.A., Inc. el a/., H-96-1462 (S.D. Tex. September 10,1997).
116 Defendants claimed that the model was not scientifically valid because (a) it was not initially designed
to model oil contamination but was created for the modeling of soluble substances such as chlorine, (b) was
not calibrated in response to field measurements, (c) eliminated portions of the water distribution system to
increase amounts of the contamination to certain homes, (d) was run twice and then totaled, and (e) resulted
in more PAHs at certain homes than had been entered under the assumed water line break. Defendants
further disagreed with the model's assumptions regarding the amount of contaminated water to enter the
pipes and the amount to stick to pipe surfaces and remain after post-repair flushing of the system.
Summary of the Case Submitted by Defendants, Adams et al. v. Chevron U.S.A., Inc. et al, H-96-1462
(S.D. Tex. September 10,1997).
117 Platintiffs' Response to Chevron Defendants' Motion for Disqualification, Adams et al, v. Chevron
U.S.A., Inc. et al.. H-96-1462 (S.D. Tex. July 25,1997).
111 For instance, Judge Hoyt discounted a pamphlet presented by Chevron attorneys that stated that blacks
had a higher incidence of lupus than whites, because "white people write it.** Tedfbrd, D. (1997). Judge
Hoyt recuses self from trial: Kennedy Heights case will have to be retried. Houston Chronicle, August 22,
1997, p. A-l.
119 In re Chevron U.S.A., Inc., Cause No. 97-20612 (5th Or. August 19,1997).
120 Order, Adams etal. v. Chevron U.S.A., Inc. etal.t H-96-1462 (S.D, Tex. August 21,1997).
121 Hearing before the Honorable David Hittner, Adams et al. v. Chevron U.S.A., Inc. et al., H-96-1462
(S.D. Tex. September 18,1997).
24
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maintaining previous rulings regarding admissibility of evidence under
the Daubert doctrine122),
b. Apply defendants' previously proposed selection methodology for a
bellwether trial, or
c. "Try the site," by determining whether harmful substances that were
the responsibility of Gulf Oil were found in Kennedy Heights and
whether those substances could cause diseases that were a part of the
lawsuit (defendants' preferred approach);
2. Which hearings and motions for summary judgment should be held and ruled on,
particularly relating to the admissibility of certain medical and scientific evidence
gathered by plaintiffs (defendants argued that much of the evidence regarding
drinking water contamination was inadmissible under the doctrine set forth in the
case of Daubert and cited approvingly in other cases, including a recent 5th
Circuit ruling123);
3. Which issues would be heard first should the case be retried; and
4. Whether there was interest in exploring settlement possibilities in the case.
Defendants initially expressed doubts about the probability of settlement, "if a settlement
implicates or necessarily implicates the personal injury medical claims of the plaintiffs."
Chevron was of the opinion that it would succeed in its legal position against plaintiffs*
medical case either on its Daubert motions, at trial, or in the 5th Circuit. They were thus
amenable to segregating the medical case from the property damage claims of plaintiffs
for rulings by the court. They did not approve of the consideration of medical claims in
mediation.
Our position is that if we went into a mediation, no matter how good the mediator, no matter what
the good faith of the parties, if they're expecting compensation for the medical part of their case
and we are not intending to pay anything on the medical part of their case, that a mediation would
be fruitless.124
Nevertheless, both sides agreed to three names of mediators before the original hearing
by Judge Hittner in September 1997. Plaintiffs' attorneys listed M.A. "Mickey" Mills
first on their list and Chevron found the choice acceptable. John O'Quinn described his
reasons for wanting to explore mediation:
I have got clear proof that your company sold what I call dirty land; and I have got clear evidence
from competent real estate experts that that has affected the value of our land, whether it caused
any disease or not. There is a stigma value associated with having your house built on top of an
old toxic waste dump. I said, surely you can come and settle that part of the case. Why can't we
do that? Because one of the big points that has been driving my decision making is, I feel out of
concern for my clients, I want them to have an economic way to get off of this land, to get away
from it. I want them to have some money where they can move on with their lives. If they could
get their property damage, perhaps that could be done... So, here's my point: I don't see any
122 The case of Daubert et al. v. Merrell Daw Pharmaceuticals, Inc. established the standard whereby
scientific evidence in torts claims is admissible. Evidence is admissible only if the principle upon which it
is based is "sufficiently established to have general acceptance hi the field to which it belongs.'* 509 U.S.
579,113 S.Ct. 2786.
123 Allen v. Pennsylvania Engineering Corp., 102 F.3d 194 (5th Cir. 1996).
124 %>ra note 121, p. 61.
25
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reason why we can't at least in good faith mediate the property damage. I mean, [Chevron]
doesn't have a Dattbert hearing, as I see it, on the property damage.12
Other matters remained unresolved. For instance, plaintiffs were concerned about how
mediation would affect their claims under CERCLA, which allows for recovery of money
spent investigating the extent of site contamination. In addition, under the Resource
Conservation and Recovery Act (RCRA), plaintiffs claimed a right to require defendants
to remediate the site, a process which their lead environmental engineering expert
estimated at between 30 and 42 million dollars. O'Quinn felt that recovery of certain
expenditures as well as punitive damages (should they be linked to a property damage
claim) could be explored and potentially resolved through mediation. Defendants
countered that they would prefer not to discuss all of the above issues, only to have to
subsequently try the personal injury claims. While the issue was left to the judge to
determine, plaintiffs urged the court to "see if we can start a mediation in the near
future," while defense attorneys noted that "it would be more productive to undertake
serious settlement negotiations, if they're possible, after we have had a hearing on the
motions we have been discussing," The court ordered the case to mediation on
September 22,1997, noting that "Mr. Mills was the mediator agreed to by all parties, in
the event the Court elected to forward this case for mediation." Further, it was ordered
that approximately 1,000 plaintiffs who had been previously severed from the case be
rejoined with the other O'Quinn plaintiffs.127 At around the same time, a matter in state
court that focused primarily on property value diminution was ordered into the same
mediation.128 Several small, independent groups of plaintiffs were also folded into the
talks. The court's objective of applying whatever was to be worked out in mediation to
all claimants was potentially met.
Chevron asked the court to allow it to file additional motions for summary judgment,
particularly regarding plaintiffs' medical testimony and the admissibility of evidence
regarding water contamination. As the mediation progressed, Judge Hittner gave a
clearer picture of what a trial would look like should mediation prove unable to yield a
settlement. First, Hittner would hold Daubert hearings regarding water contamination
and property value claims. He further planned to convene oral hearings for a number of
defendants* motions to exclude testimony.129 Knowledge of recent court rulings that
referenced and reinforced the doctrine established in Daubert started to shape certain
plaintiffs' attorneys' views of their changes of success should the case be retried.
Mills began to carry out his tasks as mediator in the case, and was later appointed
"special master" under rule 53(b) of the Federal Rules of Procedure. He was asked to:
123 Supra note 121, p. 62.
126 Order, Adams et al v. Chevron, U.S.A., Inc., H-96-1462 (S.D. Tex. September 22, 1997).
128 Interview with Plaintiffs' Attorney, December 19, 2002, via telephone.
129 Transcript of Hearing before the Honorable David Hittner, Adams et al. v. Chevron U.S.A., Inc., H-96-
1462 (S.D. Tex. February 19,1998).
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Make recommendations to the Court to define the final/complete plaintiff group in this case; and
Report to the Court and the parties his determination of an allocation of any of the settlement
funds among the final/complete plaintiffs in the Kennedy Heights litigation.130
Thus commenced the settlement negotiations that plaintiffs had long prepared for
(attorney notes suggest preparation of a settlement matrix linking plaintiffs, to exposure
years and forecasting bellwether claims settled in a certain dollar value range). The
special master described "four phases" to settlement of the case on June 2,1998, after
having met with most or all of O'Quinn's clients (roughly 1,700 people):
The first phase, which I have explained extensively to the various clients and to the plaintiff
attorneys, would be what I call a settlement model. The settlement model treats all of the parties
fairly, even though each of the parties may get a different amount of the settlement. I should have
the settlement model done within the next week, maybe as late as 10 days, to present to the
plaintiffs and their counsel. Once the settlement model has been agreed to by the plaintiff
attorney, because it's essentially for their allocation of whatever amount the case settles for, I
would then be involved in negotiating an actual settlement agreement. The settlement agreement
will set out all of the detailed terms of the settlement. For example, the amount of plaintiffs that
have to agree to the settlement and any other particular terms that may be unique to the settlement.
Once the settlement agreement has been negotiated, Your Honor, we would then negotiate the
dollar amount, the actual amount of settlement, and 1 will make clear to all of the panics and all of
the attorneys that my view of the settlement has no bearing on liability of any. It is a settlement; it
is a resolution of the dispute. Once we agree on the settlement amount, then the respective
attorneys would send letters out with their signature and my signature to their clients
recommending the settlement and the amount they would receive. As we did in the Fench Ltd.
Case and the way I settled the Colonial Pipeline case, any of the clients who are not happy with
the settlement then had a right to come and meet with me to review their settlement, and men I
would make a recommendation to the Court whether their settlement should be raised or lowered
or remain the same. The fourth phase would be for those clients who are just not happy with the
settlement. The way we have handled it in the past is, after reviewing their claim, I have made a
recommendation to the Court that their attorney, for example, O'Quinn should have the right to
withdraw, and they would have the right to seek other counsel; and as long as the requisite number
of plaintiffs agree to the settlement, then the settlement would go forward.31
Interviews revealed a broad range of accounts of the special master's meetings with
plaintiffs. It was agreed that all resident-plaintiffs met with the master, for the most part
on more than one occasion and in groups of roughly 20-30. Some recalled that these
groups were divided according to geography. All sides agreed that the master discussed
what he felt were the facts of the case and the case's merits with the residents. While
certain residents were convinced by their meetings and by data made available to them
that the neighborhood was only contaminated at "a minimal amount or level,"132 others
expressed concern over the master's apparent use of the meetings as a means of cajoling
settlement by raising doubts about evidence and plaintiffs' chances at trial. Of equal
130 Agreed Order to Appoint Special Master, Adams et al. v. Chevron U.S.A., Inc., H-96-1462 (S.D. Tex.
April 21,1998).
131 Status Hearing Before the Honable David Hittner, Adams et al v. Chevron U.S.A., Inc., H-96-1462
(S.D. Tex. June 2,1998), pp. 6-7.
132 Interview with Kennedy Heights residents, December 12,2002, via telephone. Residents who reported
that they were confident that the contamination posed no danger were not without their own stories of
suspected contamination, such as "odor in our water that comes out of the faucet."
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concern to residents, particularly some who lived in the vicinity of the NE pit, was the
manner in which their concerns were heard and then apparently discarded. For example,
it was suggested that the master shared with the small groups a number of issues that
would be considered during the process. One resident recounts these issues in a letter to
U.S. Representative Sheila Jackson Lee:
My concerns with the case vary from the frequent presiding judges removed from the case to the
apparent disregard of factors, such as the six elements. These elements were argued and discussed
in trial and reiterated with residents in a meeting with the mediator as the basis to reach decision
on during mediation, per Judge Hittner's orders. The six elements included: (1) the buyout of
homes over two of the three pits in the subdivision; (2) relocating residents; (3) transaction cost;
(4) clean-up of area for other residents outside the pits; (5) move and replace water lines; (6)
personal injury. The proposed settlement award for Kennedy Heights residents appears not to
reflect the judge's request.133
Another discusses what he perceived to be the master's discussion of weaknesses in
plaintiffs' case:
One of the things that came to my mind, the meeting that we did have with him. His thing was,
OK, how many of you all here have ever heard of tort reform? And we were like. And then he
said, now ya'll know that there has been tort reform mat has taken place in Texas. So it's like, in
other words, at this point here, because of tort reform, these particular categories here, you can just
forget about these. And that's when one of us rose up a bit, and said "what are you talking
about?" And he said all of the things mat have happened to everybody. So the mediator's thing
was, because of tort reform, you're not going to be able to get what you asked for. He had
mentioned that Texas legislature had gotten involved in the whole process of tort reform, and
everything, had turned everything around. So it was like he just found this out. He just found this
out And he said, since I know what I'm talking about, these categories here, you know, there's
nothing that's going to really be done about all of these.134
Unfortunately, no records of the meetings were available for review, making it difficult to
reconcile the various accounts of meetings with the special master. However, it is clear
in court transcripts that by June, 1998, Mills claimed to have "explained to the O'Quinn
clients that part of the settlement would not include a sale of their house, unless it was
voluntarily by them to some third party."135 The master also recalled his general
approach to meetings with residents:
They're never OK with anything. Until you convince them that they can't win their case in the
eyes of the law. I'll give you an example. If you're asked to mediate a wrongful death case. The
first thing you have to do in a wrongful death case as a mediator is you have to say to the people,
are you witling to settle your case for the value that is set in the eyes of the law? If you're not
willing to settle your case based on the value as the law sees it, then we need to go home. You
don't get over that hurdle in a wrongful death case, in the first five minutes, you might as well
give the people their money back and not mediate it. And as a mediator you're wasting your time.
You have to sometimes tell the people the hard truth. I do it early, not later. Just like in Kennedy
Heights, people had to understand the consequence of the law. I'm a consequence mediator, not a
risk mediator. Risk is not what I'm concerned about in mediation. And you don't know what the
133 Jones, D. (1999). Letter to James Gaston, Chief of Staff, Office of U.S. Representative Sheila Jackson
Lee from Kennedy Heights Plaintiff, October 18,1999.
134 Interview with Kennedy Heights resident, April 20,2002, in Houston, Texas.
135 Supra note 131.
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consequence is until you have something to lose in the mediation. So my notion with these people
was if you all don't understand the law and the consequence of the law, then I'll never be able to
work a settlement with you. And you all need to understand that 9 chances out of 10,0'Quinn is
gonna get poured out on summary judgment, he's never even gonna get evidence on, and for some
reason if you get the one chance in ten that you get a trial, the 5th Circuit will take it away, ten out
often times. There is no basis for this lawsuit...
Q: So when did you switch from trying to educate them about the case as it stood to the solution
lhat you offered?
A: When I was satisfied that I had the confidence of the community. I never talked to them about
solutions until I felt they were educated on the facts and the consequences of the trial.
Q: And so the solution that you offered at first, did that look a lot different from what eventually
came to pass?
A: I worked through a series of solutions.
Q: What did the first one look like?
A: What everybody wanted.
Q: Which was?
A: New homes in another community. I let them come up with lots of different solutions that
they thought were available and I worked on those solutions and I was not able to obtain their
solutions. Then we worked on solutions that I could accomplish. What I'm saying to you is, I
knew their solutions were unobtainable, that was OK. Because it's not like the bell was gonna go
off and if 1 didn't get it done a bomb was gonna go off. So I had to let them work through the fact
that their solutions were not obtainable. I had to get them some respect for what they wanted even
though I knew from the beginning they would never be achieved. They were impossible.
Q: Did that include taking their proposed solution and then trying to work that out with Chevron
and the attorneys?
A: I don't work exactly that way. I'm a very proactive kind of negotiator. If you have solutions
that make no sense, I'll negotiate with you a different solution. I won't take what you think is a
solution and dignify it if it makes no sense. I don't do that.
Q: So what was the first kind of solution that did warrant your bringing it to both sides?
A: The only solution that Chevron was ever gonna agree to was just an aggregate dollar amount.
I had to deal with the allocation of it.136
In addition to their concerns regarding meetings with the master, residents did not express
an understanding of how a final settlement was determined or allocated. The total dollar
value was determined through positional bargaining between attorneys for both sides,
with the assistance of the special master in terms of information regarding appropriate
amounts based on computer-generated settlement models developed by his associates.
The details of these discussions are privileged. However, it was generally agreed that
some number approaching what plaintiffs' attorneys had prepared for before and during
trial was asked for and rejected. The extent to which Chevron's offers changed was not
136 Interview of Special Master, Adams et at, v. Chevron U.S.A., Inc., April 16,2002, in Houston, Texas.
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clear, although attorneys for Chevron described "a rigorous litigation risk analysis"
performed in order to arrive at a settlement offer. The logic was simple: Chevron had
spend x amount of dollars on the case to date, and a second trial on the merits would cost
at least a certain fraction of that number. In addition, Mills' efforts figured into the
decision-making:
Mills had a formula for distributing money, an amount with that many plaintiffs, trying to figure
out how much each plaintiff should get, and 1 think kind of a combination of how much money we
were willing to put up and how much he felt that the plaintiffs would be willing to accept through
his formula, we somehow ended up at that $12 million figure.137
Complete records of the final settlement or the development of the settlement model were
either privileged or unavailable for review. However, it is clear that the model involved,
at a minimum, two primary variables: "property" (a function of distance from the NE
and SE pits) and "personal" (which was determined as a composite of duration of time
spent in the subdivision, the monetary value of certain diseases suffered, and other
considerations).1 8 Higher dollar values were computed for homes of varying distances
from the NE pit, as it had been used for crude oil storage while the SE pit had stored
brine. Property awards were determined for each address and divided among the number
of plaintiffs who claimed to have lived at the address. The master made an effort to
ensure that those living on top of the NE pit had sufficient resources to allow them to
purchase a home elsewhere. Review of a map illustrating "Total Property Award" for
plaintiffs in the Adams case shows that homes above the NE pit were awarded $54,000.H0
By comparison, homes over the SE pit were allocated $15,000, The distribution of
property awards appears uniform across the subdivision within a distance of 500 feet
from the NE ($25,000 when not directly over the pit) and SE pits ($10,000 when not
directly over the pit). At distances greater than 500 feet, the value appears as a
continuous function of distance. The NW pit was not factored into the property
determinations. Nor was the exposure pathway claimed by plaintiffs (ingestion,
inhalation, or absorption of contaminated water through daily activities such as cooking
137 Interview of Attorneys for Chevron (in-house and outside counsel), December 18,2002, via telephone.
138 Special Master's Report, Adams et al. v. Chevron U.S.A., Inc., H-96-1462 (S.D. Tex. March 24,2000):
The Master, in reaching his allocation, has reviewed all of the relevant facts and circumstances in
the case including, but not limited to, a determination of the address of each Plaintiffs residents to
establish whether their property was in the subdivision known as Kennedy Heights, and if so, the
distance from Kennedy Heights, whether the Plaintiff was a real property owner, a relative to a
real property owner or an unrelated visitor. Any real property determined to be within Kennedy
Heights was further evaluated based on its location within Kennedy Heights. The Master further
evaluated each Plaintiffs award based on the length of time the plaintiff lived in Kennedy Heights
and based on an examination of each Plaintiffs medical records, questionnaires and
interrogatories provided to the Master by die Plaintiffs attorney and other factors.
Supra note 136:
I was able to show Chevron based on objective evidence that houses built over a pit have less
value than houses that are not built over a pit. And so I took data from the same or similar type of
subdivisions and showed how much those houses were selling per square foot, and then I did a
model which for 44 houses over the NE pit, I gave those people 100% of the value of their houses,
it was like $50,000.
140 Adams Plaintiffs, Kennedy Heights Litigation, Total Property Award map (no date), obtained from the
special master of Adams et al. v. Chevron U.S.A., Inc. et al. during interview, April 16,2002.
139
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and bathing) factored into the model. This makes sense, as the property variable was
designed to model property value diminution, which would likely follow a linear distance
path rather than a more complicated hypothetical exposure path. It was not possible to
determine how these numbers were determined. The special master indicated that he
reviewed hedonic pricing models and other estimates provided by plaintiffs and
defendants. Residents also stated that the master requested information from them
regarding the cost of relocation. Some were not confident that the final system of
allocation based on the property variable yielded fair outcomes. For instance, there were
reported disagreements over whether "median" or "mean" home values in Houston
should be used (residents said that the master preferred to use median values, which they
claimed resulted in lower housing value estimates). A broader concern was expressed
over the fact that the "stigma" of living in a community that had been repeatedly labeled
a "toxic waste dump" had reduced the value of all homes in Kennedy Heights
substantially. Under this logic, a person living less than 1,000 feet from the center of a
pit and receiving $5,000 for property damages would not be able to afford equivalent
housing elsewhere in the city.
Figure 3. Kennedy Heights Plaintiffs Represented on a Settlement Allocation Map.
Residents interviewed understood the
"personal" variable even less. Review of a
map showing personal awards to Adams
plaintiffs reveals that this variable was not a
function of distance. What is clear is that
certain residents on Murr Way hi the vicinity
of the NE pit were offered personal awards
far above the average settlement value (some
in excess of $50,000 and less than a handful
above $100,000).141 A source of much
uncertainty following the release of the
settlement amounts, the "personal" variable
appears to have been built based on a system
of "disease levels" developed by the special
master and his team. One sheet lists
plaintiffs, their diseases, and a monetary
value attached to each disease (i.e., colon
cancer victims appear to have been offered
$5,000 while those suffering from lupus were
offered $25,000). Multiple diseases received
the sum of the value attached to each
condition. The fact that residents were
offered amounts that were not so evenly rounded (e.g., $5,300, $500, $10,700) suggests
that other factors, perhaps including time spent in the subdivision, were included in this
variable. As one can imagine, the personal variable resulted in a wide variance of
141 Adams Plaintiffs, Kennedy Heights Litigation, Total Personal Award map (no date), obtained from the
special master of Adams et al. v. Chevron V.S.A., Inc. et al. during interview, April 16,2002.
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settlement offers, even for people living on top of the ME or SE pit (for instance, three
adjacent homes on Lockgate Lane received personal award offers of $3,300, $102,400,
and $6,200), To the present, residents who lack a clear understanding of the model or
who feel that it was not fairly constructed are embittered by rumors of settlement offers
received by their neighbors.
While the mediation was ongoing, residents noticed that much of the attention that had
been focused on the case seemingly disappeared "overnight." After decades' worth of
concerns over water main breakages, water quality, and disease, discovery of residual
contamination, video tapes showing layers of crude oil near Pas-Key's excavation site,
and months' worth of testimony and expert witnesses* accounts of their neighborhood,
residents were surprised by the speed at which elected officials and political leaders
"abandoned" their cause. Part of the explanation for this dynamic can be found in the
activities of the special master, who "met with non-party leaders of the African-American
community" in 1997 to discuss his duties and interpretation of the case.142
A final question remains: why did plaintiffs' attorneys agree to settle the case for $12
million? First, it had become more apparent over time that Judge Hittner would make
swift rulings on certain aspects of the case should mediation fail. In a hearing in August
1999, he explains:
There is a major legal question that I was ready to decide for the last two years on the legal matter
as to the basic liability at all of Chevron due to, I guess, the intervening purchase of Log
Development. Then, of course, there was the Daubert hearing, the expert witness hearing as to,
what is it, the water itself first; and then if we got past that, as to the cause, you know, for the folks
with their physical ailments.143
Second, Hittner had granted several extensions throughout the mediation process, and
made it clear in August 1999 that he would not allow further extensions (the agreement
had been signed by this point but had yet to be ratified by the residents).144 Plaintiffs'
attorneys, in a letter to residents in March 1999, explained a third source of pressure on
their side to settle the case:
Our recommendation that you accept the settlement is based on a decision issued by the 14th Court
of Appeals in Houston in the case of Hicks v. Humble Oil and Refining Company. In Hicks, the
land in dispute had been used for the storage of crude oil in pits back in the 1920's. The land was
subsequently sold by Humble (now Exxon) in the 1940's, and several homes were built on the
land. People living in the houses became ill and sued Exxon for the damages resulting from their
illnesses, asserting the illnesses were caused by contamination of the soil by the oil stored there in
the past, which contamination got in the water supply which the plaintiffs drank. Those facts
closely parallel the fact pattern in our case. In June of 1998, the Houston Court of Appeals issued
the Hicks opinion holding that Humble Oil was not legally responsible for any of the illnesses,
stating that because the purchaser of the land knew that the land had been used for crude oil
storage, Humble owed no duty to those living in the houses ultimately built on the land.
Thereafter, lawyers representing the Hicks plaintiffs sought to appeal the case to the Texas
142 Joint Status Report, Adam et al. v. Chevron U.S.A., Inc., H-96-1462 (S.D. Tex. November 21,1997).
143 Hearing before the Honorable David Hittner, Adams et al. v. Chevron U.S.A., Inc., H-96-1462 (S.D.
Tex. August 25,1999), p. 8.
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Supreme Court, which denied the application and refused to hear the case, making Hicks law in
Texas.145
On March 23,1999, roughly 2,400 plaintiffs met at the Hofheinz Pavillion basketball
court at the University of Houston, and were again called upon to accept the
settlement.146 An attorney asked the group to pause and recite the Prayer for Serenity.147
Most residents were too broken to protest the choice that they would have to make:
either accept their settlement, or be deemed pro se (representing themselves, should the
court grant motions by O'Quinn and associates to withdraw as counsel)148 in a case that,
should it proceed, will begin bv considering strong challenges to Chevron's liability and
the admissibility of evidence. A few residents, some of whom had already moved out
of Kennedy Heights, refused to accept their settlement allotments (including one resident
who declined an offer of more than $50,000) and expressed their concerns in writing to
the master, their attorneys, and public officials. They protested the "ethical dilemma" in
which they had been placed by the decision, and questioned the true extent of similarity
between the Hicks case and their own.150
In the end, plaintiffs' attorneys entered into a master settlement on July 28,1999, which
set a number of conditions that had to be satisfied by plaintiffs' counsel. Depending on
where they resided and their representation, certain percentages of groups of plaintiffs
had to elect to participate for the settlement to move forward.151 The maximum amount
of funds to be paid by the Defendants was set at $12 million (later raised to an aggregate
amount of $ 12.9 million), including $4 million for plaintiffs* trial counsel for partial
reimbursement of expenses and $400,000 (later raised to $650,000) for the special
master.152 Residents were given the opportunity to meet with the master and discuss any
143 O'Quinn, J.M. (1999). Letter to Kennedy Heights Residents from John M. O'Quinn, O'Quinn &
Laminack, March 1,1999.
146 Chambers' Plaintiffs' Response to Motion to Withdraw of John O'Quinn et al from their Representation
as their Councel, Adams et al. v. Chevron U.S.A., Inc., H-96-1462 (S.D. Tex. February 9,2000).
147 "Lord, grant me the serenity to accept the things I cannot change, courage to change the tilings I can,
and wisdom to know the difference."
148 O'Quinn, J.M. (2000). Letter to Client from John M. O'Quinn, O'Quinn & Laminack, July 28,2000.
149 In September 1999, Judge Hittner made the following comments during a hearing: "So the folks who
elect - and that's your perfect right - to opt out of any settlement, you had better get a lawyer to come into
this case where he or she will say that they are up to speed and ready to represent you, or you'll have to
represent yourself. I certainly encourage you to get a lawyer, because on this date - I'm going to give you
a date. On that date I'm going to begin writing as to whether this case is legally sufficient and whether or
not you've got a case or whether the defense is correct that the whole thing should be poured out. I'm
going to start writing on a certain date with no further notice to anybody." Supra note 144, p. 35.
In the case of Hicks et al. v. Humble Oil and Refining Company, Exxon Corporation and Exxon
Company U.S.A., 970 S.W.2d 90 (Tex App. 1998), the court found that since the Hicks family had notice of
the "dangerous condition" (the oil pits) when Thomas Hicks purchased his land, Exxon did not have a legal
duty to give notice of the potential effects of the residual oil. Residents in Kennedy Heights continue to
claim that they received no notice of the presence of the pits under their properties.
151 For a certain number of plaintiffs living over the NE pit, the settlement called for 100% acceptance.
Other groups had settlement requirements of various percentages below 100%.
152 Master Settlement Agreement for Plaintiffs Represented by O'Quinn & Laminack, Adams et al. v.
Chevron U.S.A., Inc., H-96-1462 (S.D. Tex. July 28,1999). Amounts were increased by the time the
special master filed his report in March 2000. Special Master's Report, Adams et al. v. Chevron U.S.A.,
Inc., H-96-1462 (S.D. Tex. March 24,2000).
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grievances that they had with the settlement. A total of 3,150 residents settled. An
additional 589 did not. The court granted Chevron's motions for summary judgment and
dismissed remaining plaintiffs* claims with prejudice on October 1,2002. Log
Development was also granted summary judgment based on limited immunity under the
Texas Business Corporation Act, due to their bankruptcy and dissolution.154
The EPA performed an Expanded Site Inspection in Kennedy Heights starting in August
1998,155 Sampling of the subsurface soil, groundwater, and soil gas commenced in June
2000, focusing on areas where EIT had previously documented contamination. The
Inspection did not include drinking water samples, as "a review of City and State records
indicate that the drinking water supply in the Kennedy Heights neighborhood meets all
drinking water standards."136 Soil samples were taken at depths of 0-2 feet and 4-6 feet
(30 near NE pit, 8 near NW pit, and 18 near SE pit). Groundwater samples were
collected from existing monitoring wells within the NE pit. Soil-gas samples were
collected from properties within the NE pit. TPH levels of up to 16,500 ppm were
detected at a depth of 4-6 feet. Traces of VOC's were also found in soil samples, as were
traces of contaminants in the groundwater samples. In addition, "a thin oily layer of non-
aqueous phase liquid (NAPL) was encountered while taking water level measurements at
groundwater monitoring well NE-30."157 EPA contractors documented hydrocarbon
odors at several sampling locations when opening soil core barrels. Visible hydrocarbons
were present hi a monitoring well and in one of the soil samples.
The EPA developed of a "worst case scenario," where the highest concentration of TPH
found would be excavated and spread on dirt where a child would play and come into
direct contact with the soil through oral, dermal, and inhalation routes. Because this
scenario yielded a hazard quotient less than one, the EPA concluded that "the soils do not
present a risk to the residents from exposure to TPH by direct contact with soil."158 They
concluded that the site did not qualify for listing on the Federal Superfund's National
Priorities List. However, they noted that the water mains in the area of the NE pit were
old and in need of repair. City officials noted at the tune that they were prohibited from
replacing mains during litigation, and that they would *try to move forward with the
replacement."159 To date, residents say that no work has been carried out to replace the
133 Final Judgment, Adams et al v. Chevron U.S.A., Inc., H-96-1462 (S.D. Tex. October 1,2002).
154 Ibid.
155 Ecology and Environment, Inc. (2001). Expanded Site Inspection, Final Report. Prepared for U.S.
Environmental Protection Agency, Region 6, May 2001.
136 Ibid, p. 2-3 ("However, the EPA has met with both City officials and the residents several times, and the
residents' concerns about their drinking water supply remain unresolved")
137 Ibid* p. 4-7 ("An attempt was made to capture enough of the NAPL to send for laboratory analysis, but
there was not a sufficient quantity available for sample collection. A decision was made to go ahead and
sample the well, which went dry during purge activities. The well was allowed to recover and a sample
was collected for analysis.")
138/W4 p. 5-2.
139 Ibid, p. 3-1 ("The piping is cast iron and was installed in a configuration which requires periodic
flushing at fire hydrants throughout the neighborhood to eliminate corrosive buildup. Replacement of the
existing water mains with new piping was well as additional tap water sampling were both brought up
during a meeting with residents and City officials.")
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pipes. Some believe that the City is reluctant to act, because "if they dig, they'll find
something else."
Discussion
Recent research into court-centered mediation reveals that the procedure, when utilized in
civil litigation, is drifting toward bilateral negotiation between attorneys, with clients
playing minimal or no role.160 The originally dominant vision of mediation as guided by
the principle of self-determination, where parties actively participate, choose and control
decision-making norms, create options for settlement, and control the final decision
regarding whether or not to settle, has given way to norms of settlement aimed at case
evaluation and closure.161 This trend is viewed positively by those who ascribe to a
transactional model of adjudication and view mediation as a means of efficiently
managing mass tort and other forms of complex litigation.162 In contrast to the
transactional model, the notion of "procedural justice" proceeds from an understanding of
certain needs expressed by disputants, particularly disadvantaged parties. These
disputants value (a) the opportunity to tell their story, (b) control over the telling of their
story, (c) knowledge that their story has been considered fairly by a mediator, and (d)
signals from a neutral that would suggest that a public institution such as the judiciary
values and respects them as members of society.163 A number of process characteristics
that influence procedural justice judgments center around the style employed by the
court-appointed neutral. It is clear that the orientation of the mediator in Adams v.
Chevron influenced not only the decision to settle, but also the judgments of residents
who had for years sought closure of their claims and perceptions of where they lived.
Thus it is instructive to consider the different mediation styles that are employed in such
situations and their ramifications for community members who believed themselves the
target of policies that exposed them to serious health risks, possibly on account of the
ethnicity of the members of the community.
There are two "ideal types" of mediation styles that have been given careful
consideration in the literature: facilitative and evaluative mediation. Facilitative
mediation assumes that parties can work collaboratively, provided certain conditions of
their interaction are met. Mediators who adopt this style tend to focus on assisting parties
in reaching mutually acceptable decisions by clarifying communication, urging an
understanding of underlying interests, and creating means through which disputants can
gather and interpret information and understand their options. By contrast, evaluative
mediation spends little time satisfying interests and focuses on the merits of parties'
positions as expressed through the courts. In practice, mediators will often make use of
aspects of both facilitative and evaluative mediation. Still, the trend toward evaluative
mediation has led some states to adopt court rules governing their behavior. These rules
160 Welsh, N. (2001). Making deals in court-connected mediation: What's justice got to do with it?
Washington University Law Quarterly, 79: 787-861.
161 Welsh, N. (2001). The thinning vision of self-determination in court-connected mediation: The
inevitable price of institutionalization? Harvard Negotiation Lav Review, 6: 1-93.
162 Rubenstein, W.B. (2001). A transactional model of adjudication. Georgetown Law Journal, 89: 317.
163 Tyler, T.R. (1987). Conditions leading to value-expressive effects in judgments of procedural justice:
A test of four models. Journal of Personality and Social Psychology, 52: 333-339.
35
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are often modeled after the Model Standards of Conduct for Mediators that was prepared
by a joint committee of the American Bar Association, the American Arbitration
Association, and the Society of Professionals in Dispute Resolution (now the Association
for Conflict Resolution).164 The Standards emphasize self-determination, mediator
impartiality, and the role of professional advice. Let us consider each in term as they
relate to Adams v. Chevron. While these standards are not incorporated into Texas state
laws governing mediator conduct, they allow us to contrast the special master's work
with what are viewed as important elements of a mediation process, particularly one that
includes a party which feels that it has been denied adequate avenues for obtaining
procedural justice.
Self-determination. Self-determination is upheld if the parties' right to decide is
protected, parties are not unfairly influenced into settlement, material facts are not
misrepresented, and the parties are encouraged to conduct the deliberations in a non-
adversarial, respectful manner.165 When considering the role of the mediator in
respecting a disputant's right to self-determination, one must discern whether the neutral
engaged in facilitative influence or coercion. Even the most facilitative of mediators uses
process considerations to influence how parties interact and the issues that they consider.
Coercion is more likely to occur as elements of self-determination are ignored, set aside,
or deliberately violated in an effort to settle a case. In Adams v. Chevron* there were
clear signals from the court that the case was to consider which plaintiffs could be
included in a settlement, and what resources should be made available and in what
proportion as they related to each disputant. Chevron made it clear from the beginning
that settlement would only occur hi the absence of reference to contamination, links
between residual hydrocarbons and disease, water quality, or other matters of medical or
epidemiological causality. In this context, plaintiffs were given the opportunity to meet
with the mediator, but the utility of their stories of living with contamination was greatly
reduced before they even entered the mediation. Further, their ideas about settlement
"elements," however implausible given Chevron's stance on each of them, were used
only as a means of illustrating their unrealistic nature to the residents. Meetings with the
mediator focused on matters of "legal consequence," meaning deliberations were
imbalanced hi the direction of using claimants' legal standing to reduce what they would
be willing to accept in the way of monetary settlement. While there is no evidence that
the mediator misrepresented any information in this case, he still undertook the task of
translating voluminous records of years' worth of preparation, testing, studies, and
findings into a compact picture of why, in his view, contamination did not exist in
Kennedy Heights. Any opportunity for the residents to use the mediation process to
address their fears of and experiences with contamination would come only when
residents were willing to accept this translation of a complex reality with which plaintiffs
were most intimately involved,
Impartiality. This principle requires that a mediator disclose of any circumstance that
could lead to bias or prejudice in their understanding of a case, views of one or more
164 Levin. M. (2001). The propriety of evaluative mediation: Concerns about the nature and quality of an
evaluative opinion. Ohio State Journal of Dispute Resolution* 16: 267-296.
36
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parties, or actions in shaping or interpreting proposed options for settlement. There is no
evidence that the mediator in Adams v. Chevron favored one side over the other.
However, his reading of the case and formulation of a view of the extent of
contamination, which went beyond his reading of the plaintiffs' likelihood of success at
trial, meant that any questions that he raised regarding residents' accounts would be
biased in the direction of his conclusions regarding the subdivision. Plaintiffs, who were
asked during their meetings with the mediator to suggest what they felt were the "facts"
of the case only to see many of them crossed out on a board, had to spend a considerable
amount of their very limited time with the mediator either defending their understanding
of the facts or coming to terms with the mediator's interpretation. This left little time or
energy for an adequate understanding of plaintiffs' interests, which may or may not have
differed from what had been represented by their attorneys and may or may not have led
to options other than a strict dollar value distributed among individuals.
Professional advice. A mediator who elects not to refer parties to sources of neutral,
professional advice and undertakes these tasks himself assumes increased responsibilities.
This does not mean that a mediator who is also an attorney cannot provide assessments
based on the law, as occurred in this case. However, this role should be undertaken at the
request of the parties and with a clear explanation of whether the advice is based on a
personal reading of the facts of the case and the law or some special knowledge of how a
particular judge will rule. It should also avoid directing parties to a certain resolution of
the issues at hand. Finally, information provided by the mediator should conform to what
that individual is qualified by training or experience to provide. In the case of Adams v.
Chevron, it is difficult to determine whether information about tort reform, court rulings,
and the like were used to provide a realistic account of plaintiffs' options or to encourage
timely settlement. What is clear is that very strong statements about the facts of the case
were based on readings of evidence by a trained accountant and attorney, not a
toxicologist, epidemiologist, environmental engineer, or physician.
One might ask, within the context of complex mass torts claims involving thousands of
claimants, how would it be possible for a mediator to engage in more facilitative
practice? One would also be correct in asserting that in the case of Adams v. Chevron,
Judge Hittner expressly called for swift determination of settlement potential when he
ordered the case to mediation. Yet shorter timetables and limited areas open to
deliberation can be used to enhance claimants' perception of procedural justice, should
they be presented in a transparent manner and used to focus deliberations on exploring
how best to meet underlying interests with what limited resources are available. The
mediator in Adams v. Chevron did consider how those living over the NE pit could meet
their primary interest, safety, by securing resources that could be applied toward their
relocation. And despite Chevron's denials of any real exposure pathway that could have
resulted in disease among the residents, the mediator allocated part of the settlement
toward families suffering from certain diseases that he felt could have been caused by
PAH's and other contaminants. He should be commended for his efforts on both
accounts. But as the literature on procedural justice would suggest, the manner in which
these allocations were arrived at can be just as important as the acceptability per se of a
monetary award to an individual claimant. To this day, uncertainties surrounding the
mediation process fuel not only anger and resentment regarding settlement amounts, but
37
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fear and anxiety over what may or may not linger in the soils of Kennedy Heights. Far
from options such as relocation en masse or site remediation that after a point became
untenable, the exploration of lower-cost options such as water main replacement,
drinking water monitoring, filters, and sidewalk and yard repair could have more
realistically reduced these anxieties, which had been sustained for years and then
summarily dismissed by the mediator as pure fantasy.
This discussion is not meant to criticize the actions of any individual involved in the case
at issue. None of the standards described have been made into law in Texas. Meetings
with the mediator in Adams v. Chevron were attended with attorneys for the plaintiffs,
who viewed the process as one of integrity. The mediator spent roughly 20 months
meeting with thousands of residents, many who were hostile to the idea of settlement.
But it is important to illustrate that the use of mediation as an alternative to adjudication
is dependent upon the timing of the process, tasks assigned to the mediator, legal and
extralegal considerations that affect the positional bargaining of claimants' attorneys, and
the extent to which the mediator is willing to uphold certain principles that will increase
the perception of procedural justice. Attorneys for the residents of Kennedy Heights,
convinced from early on that there was indeed something wrong in the neighborhood that
had to be addressed, were nearly always prepared to mediate this case. They had careful
medical documentation of personal injuries, financial accounts of property value loss, and
psychological reports of emotional distress and a "culture of contamination," But they
never really prepared the residents for what would ensue should (as with many cases
involving environmental justice claims) the final resolution have to be race-neutral, de-
linked from experiences with contamination, and focused on the individual rather than
the community in its entirety.
38
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Anticipating the Status Quo in Manchester, Texas
The First Community Environmental Audit Agreement
Gregg P. Macey
History
The Houston Ship Channel, one of the busiest, most prosperous ports in the world, is
home to the largest concentration of petrochemical operations in the United States.1 Oil
tankers, cargo ships, liquid petroleum gas carriers, and other bulk carriers move
continuously up and down the narrow channel, then- huge engines burning "bunker oil,"
the cheapest, dirtiest fuel available.2 Each year, these vessels release 273,000 tons of
nitrogen oxides into the ah*.3 The channel itself also carries the distinction of having
some of the most polluted water on Earth, a mixture of industrial wastes and sewage that
has at least twice caught fire.4 On May 11,1990, a Panamanian freighter dumped its
wastes into the channel. The waterway, as well as the ship, exploded into flames.5
The region
surrounding
the channel
includes
numerous,
predominantly
Hispanic
residential
developments.
Communities
such as
Manchester,
which lies at
the confluence
of Suns Bayou
and the Ship
Channel,6
were born in
the early
1920'sas
Figure 1. Rhodia Facility and Surrounding Communities
1 Freemantle, T. (2002). Ships fouling the air: State regulators have few remedies for pollution issue.
Houston Chronicle, July 21,2002 at 1A.
2 Category 3 vessels, which carry most of the world's cargo, are fueled by bunker oil, which is the residue
of the production of higher-grade fuels. Bluewater Network (2000). A Stacked Deck: Air Pollution from
Large Ships. July 17,2000.
3 Ibid. See also Area industrial accidents. Houston Chronicle, October 24| 1989 at 15A ("The worst
industrial accident hi U.S. history occurred when the French ship Grandcamp exploded while docked at
Texas City. The vessel was loaded with ammonia nitrate fertilizer. The next day, another ship, the High
Flyer, also blew up. Authorities said 576 people were killed and another 5,000 were injured.").
4 Tutt, B. (1993). Did channel really catch fire? Houston Chronicle, September 4,1993 at 37A.
5 Ibid.
6 August 3,1997.
-------
refinery and ship workers began to build homes on small lots worth about 450 dollars
apiece.7 Over time, Manchester8 grew into a working-class Hispanic community,
sandwiched between the Channel (to the North), a refinery (now owned by Valero, to the
East), a railroad yard (to the South), and a sulfuric acid processing facility (to the West),
owned by the French multinational Rhone Poulenc (now Rhodia). An "enclave of faded
wooden houses and taquerias languishing in the shadows and the stench of the
petrochemical industry," Manchester, as well as Smith Addition (an African- American
settlement south of Rhodia) and the multiracial Harrisburg (west of Rhodia), faced many
challenges. For one, they lacked some of the basic services that towns their size had
come to expect.9 Harrisburg and Smith Addition civic clubs struggled for years with the
Greater East End Management District to enforce anti-dumping laws and to monitor
illegal disposal of tires, furniture and household hazardous wastes.10 The Management
District recently has only recently donated a video camera to be installed at a dumping
hotspot.11 Endangered historical markers, garbage dumping, graffiti removal,
unnecessary stoppages of residents by the local police, abandoned homes, cluttered lots,
and dangerously deep drainage ditches along residential streets were consistent matters of
concern to members of the three communities.
While such a scattered list of concerns could seem disorienting to a local public official,
there was for many years a common rallying point that stirred the minds of those in the
area: the railroad tracks that crisscross the communities.12 Over one thousand boxcars
(40% of which carry dangerous or flammable cargo) lumbered across the tracks at
Central and Manchester Avenues every day, sealing off the only points of entry for
emergency services into Manchester. The principal of J.R. Harris Elementary, located
right down the street from Rhone Poulenc, used to watch children throw their bicycles
under stalled trains, crawl under, and pull them out on the other side on their way to
school.14
7 Interview with Manchester Civic Club President, April 16,2002 in Manchester, TX.
8 Houston's Planning Department classifies communities as "Super Neighborhoods," including the
Harrisburg/Manchester area, to assist in local service provision. This area in 1990 included 3,895 people,
(81 % Latino and 10% African-American). Seventy-six had not graduated from high school and more than
half of the households had incomes below $25,000. Still, the area maintained a rate of homeownership
(80%) above that of the city at large (63%). City of Houston Department of Planning and Development,
Super Neighborhood Resource Assessment, Harrisburg/Manchester, June, 1999.
9 Manchester lacks a fire department or a library, for example.
10 Interview of Harrisburg Residents, April 19,2002, in Harrisburg; Interview of Smith Addition Residents,
April 19,2002, hi Smith Addition.
11 Weber, R. (2001). Sense of urgency: Eastender wants cleanup'before God calls me'. Houston
Chronicle, August 9,2001 at 1 (This Week).
12 Edleson, H. (1985). Chronicle report: The East End: Residents challenge change in awakening
neighborhood. Houston Chronicle* March 24,1985 at 9.1; Brewer, S. (1997). Forgotten promises: Many
residents in southeastern neighborhood feel that city's mayoral race is passing them by, Houston
Chronicle, September 29,1997 at 13 A; Supra note 10; Supra note 6.
13 Zuniga, J. (1993). Residents finally supported on overpass. Houston Chronicle, April 9,1993 at 27A;
Brewer, S. (1998). Idling trains strain patience of motorists: Officials seek answers from Union Pacific.
Houston Chronicle, February 9,1998 at 13A (MetFront); Vaughn, C. (2002). Rail plans raise resident
concerns. Houston Chronicle, January 17,2002 at 1 (This Week).
14 Supra note 13.
-------
Manchester was in a state efflux in the early 1990's when the local precinct judge
received word from a union worker at Rhone Poulenc that the company was pursuing a
permit amendment. The facility needed to reclassify several hazardous waste materials
that were already being recycled on-site.15 At the time, the blue-collar community
experienced a wave of immigration that, according to some longtime residents, yielded a
number of distinct groups of residents in terms of how they perceived environmental
conditions. New arrivals lived mostly in apartments and developed few attachments to
the community, staying for as long as it took to save enough to move elsewherer Starting
in the mid-1980's, these and other residents began to find it increasingly difficult to find
work at surrounding industries, and the 'Svalk-to-work" incentive that had encouraged
employees to construct modest wooden homes on the plot of land began to erode:
Because you have another neighborhood across from the other big street, which is Lawndale, and
there's another small community like this, and it was all Hispanic and blacks and a few whites.
And then across Broadway, which is about a mile and a half down, mere's basically the same
ming. You had the blacks and the Hispanics mat wanted to live close to whatever job they had.
Whether it was at the docks, or at the cement plant, the chemical company, the refinery, or the
railroad. And like I say, back then, all you needed was a strong back and you know, a little
common sense. And you get a job. They say "OK, we'll hire you." Or somebody recommended
you. It doesn't work mis way now.. .The only place is I guess the docks, where they don't ask you
if you have a college education. We have one, two, three real close docks right here16
Unlike the new wave of immigrants from Central and South America, those who had
lived in Manchester for most or all of their lives watched as relatives who worked at the
plants grew older and often died of cancer.17 This group of senior citizens consisted of
homeowners mostly of Mexican ancestry, and was the primary group organized in
opposition to Rhone Poulenc's proposed permit modification. A third group, also
consisting of homeowners, was not as familiar with the plight of former refinery and
shipyard workers but was more concerned about environmental conditions than the newly
arrived population of renters but also more engaged in daily blue collar issues that
affected their jobs, homes, and children.
Environmental conditions at facilities such as Rhone Poulenc began to improve starting
in the early 1990's while issues that more directly impacted residents* quality of life
worsened. Toxic releases, beginning in 1989, dropped precipitously, and the spate of
accidents at former Stauffer Chemicals subsided for the time being. At the same time,
truck traffic became more visible. The number of accidents, involving haulers of
hazardous chemicals increased. Accidents occurred as the trucks, carrying molten sulfur
and other materials, traveled on residential streets or overturned while exiling the 1-610
bridge.19
15 Campbell, J. (1991). Residents vent anger at chemical firm. Houston Chronicle, November 22,1991 at
38A.
16 Interview of Manchester resident, April 16,2002, in Manchester.
17 Interview of Houston City Councilperson, April 17,2002, hi Houston.
18 For a history of Rhodia's toxic releases, see httPi/Avww .scorecard.o.rg/en y-
releases/facilitv.tct?tri id=77012STFFR8615M#data_summarv. Historic accidents preceding the purchase
of the facility by Rhone Poulenc are described below.
19 Supra note 17.
-------
Within this setting, the first permit-driven "good neighbor agreement" signed between
residents and a neighboring industrial facility was developed. Community-corporate
compacts, or good neighbor agreements (GNA's) are terms used to denote "instruments
that provide a vehicle for community organizations and a corporation to recognize and
formalize their roles within a locality."2 Armed with toxics release inventory data,
pollution monitoring results, or stories of residents1 daily experiences living next to
polluting industries, citizen groups are sometimes able to organize campaigns to bring
industries who are in violation of local ordinances to the bargaining table. There, parties
seek mutually beneficial solutions to problems stemming from their operation within the
community. Involvement of these stakeholders can help to compensate for the lack of
resources available to the EPA in regulating industrial activities. In a shift from
command-and-control regulations that focus on the management of end products of
Industrial processes and the shifting of effluent from one medium to another (air, water,
and soil), GNA's can engage industries in serious discussions regarding pollution
prevention strategies.22 At the same time, stakeholder audits and negotiations can
potentially increase access to information about operations, worst case scenarios, and
other vital data that will facilitate the exploration of creative solutions and monitoring of
agreements reached. These developments reinforce Congress's attempt to encourage
emissions reductions through passage of the Pollution Prevention Act and other
Tj^ "^
legislation in the early 1990's.
Prior to 1991, the term "good neighbor agreement" was used to describe settlements
reached after considerable mobilization by residents against owners of particularly
noxious or dangerous sites. The use of a permit change or renewal as a leverage point for
encouraging constructive negotiations was the subject of discussions but had not yet been
successfully achieved.24 In Texas, the shift to this strategy grew out of ad hoc attempts
by an environmental organization to discourage further allowable emissions from some
of the many facilities in the area (in addition to Rhone Poulenc and the refinery, facilities
owned by Goodyear, ExxonMobile, Texas Petrochemical, and Lyondell-Citgo dotted the
landscape) and elsewhere across the state. The lead proponent of community organizing
around petrochemical plants was the statewide environmental advocacy group, Texans
United (TU). Prior to Rhone Poulenc's proposed permit modification, TU was involved
in two attempts to negotiate a "precedent-setting good neighbor agreement," with Exxon
in Baytown and the Star Refinery in Port Arthur.
20 Lewis, S. (1999) Good neighbor agreements, a tool for environmental and social justice. Social Justice,
23(4).
21 Adriatico, M. (1999). The good neighbor agreement: Environmental excellence without compromise.
Hastings West-Northwest Journal of Environmental Law and Policy: 5: 285.
n Lazarus, R.( 1992). Pursuing environmental justice: The distributional effects of environmental
protection. Northwestern University law Review, 87: 787-857.
23 42 U.S.C. § 13,101(bX1994). See also me Environmental Protection Agency's Pollution Prevention
Strategy, 56 Fed. Reg. 7849 (1991),
24 Interview with Community Organizer, April 18,2002, in Houston.
25 TU newsletters (Exxon: How to be a Bad Neighbor January 1990; Sanctions Sought for Information
Denial, Spring, 1992; Refinery Inspection by Environmental, Church, and Labor Representatives - A Texas
First!t November, 1990).
-------
Tfae first one, I believe it was Exxon in Baytown, and we actually went into negotiations, built a
grassroots group called Baytown Citizens Against Pollution, had meetings with the company, and
then that just completely fell apart. The company refused to negotiate what we asked for, which
was a citizen inspection with an authorized, I mean with an expert that the citizens chose and had
confidence in, an independent expert the company was to pay for. Exxon wasn't willing to do
that, and then set about trying to divide the group and publicly accused me of going up in their
plant and taking a sample. I took it where they discharged into Galveston Bay. When they
accused me of [taking the sample from inside the plant] I sued them for slander, defamation. Then
we eventually challenged then- permit for that discharge point and filed a citizens' suit for
violation of the Clean Water Act and eventually won that. That whole battle took about five years,
so that's where we went in, met with the company, tried to negotiate, and then the company didn't
want to negotiate and we ended up fighting them in the regulatory arena and in the courts. And for
five years. But we tried first the constructive approach, and Exxon wasn't interested in doing that.
Star Refinery, you know, we had not done anything over in Port Arthur. We had a board member
and groups over there, so in mat case we did negotiate with the company, the company did agree
to an independent, we call it environmental and safety audit. We picked the expert, someone that I
had met when I first came to Texas, and went in the plant, interviewed workers, looked at records,
physically inspected the plant, and the company split the cost of the auditor. We chose him and
the company approved him and the company split the cost. And some people in our group wanted
to share in that cost because they felt the results would be more credible. But anyway, the
recommendations were made, a report was issued, and the company refused to implement the
recommendations26
TU learned some important lessons from its early experiences with community-corporate
negotiations. First, it was important to narrow the scope of a community's requests or
what they wanted to accomplish before negotiations commenced. With Exxon, TU was
unable to choose an isolated problem area or unit within the facility to focus on
throughout discussions with plant management. Following their interaction with Star
Refinery, the group further realized that reaching agreement was a hollow victory as long
as a company was not convinced that implementing its various provisions was in fact
beneficial to itself. TU continued its search for a precedent-setting agreement with
modified criteria for selecting an appropriate site for then* next organizing campaign: an
organized or close-knit community, a serious problem, a facility that was not
unreasonably complex (as was the Exxon refinery), and a "winnable fight" that would
have repercussions for other
industries in the region. Rhone
Poulenc and the Manchester
community seemed to meet all
of these requirements.
The Problem
The Rhone Poulenc facility had
been operating since 1917.27
Starting in 1955, when the
plant was acquired by StaurTer
26
Supra note 22.
Figure 2. Rhone Poulenc facility seen from Manchester under 610 bridge.
27 Proposed Rules: Environmental Protection Agency, 40 CFR Part 261, Hazardous Waste Management
System; Identification and Listing of Hazardous Waste; Proposed Exclusion. Federal Register 64(199):
55880-55882.
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Chemical Company, the plant regenerated sulfuric acid from spent sulfuric acid, sulfur,
and bauxite.28 It began to use waste-derived fuel in 1976 in order to provide energy for
the regeneration process, which required that a certain amount of wastes be added to an
acid-producing furnace (the facility did not receive a RCRA permit for this activity until
March, 1987). In 1985, the 46-acre site began to shift ownership frequently. Stauffer
Chemical became a subsidiary of Cheeseborough-Ponds. Owership was subsequently
transferred to Unilever, Imperial Chemical Industries, Akzochemie, and finally Rhone
Poulenc Basic Chemicals in January 1990.29
Changes in environmental regulations at the state and federal levels reclassified some of
the wastes used in Rhone Poulenc's incineration process "hazardous/* meaning that
permit alterations were required for several Rhone Poulenc-owned facilities, including a
plant in Hammond, Indiana.30 At the time (1990), the facility did not have as
sophisticated a set of environmental professionals or internal policies for dealing with
regulatory changes as it does today. Plant managers were given a lot of discretion hi
handling public relations, but they rarely remained at a site for more than three years.
Prior to the proposed permit modification, the Manchester community and Rhone
Poulenc management had failed to develop any kind of relationship institutionalized by
regulation, organization, or trust.31
Interestingly, former site owner Stauffer Chemical did not have to contend with public
opposition when it sought a permit at the same site to become the second commercial
facility in the state to accept and incinerate toxic waste from other companies hi 1986.32
Facing a slowdown in the oil industry (one of its primary customers), Stauffer responded
to new provisions added to the Resource Conservation and Recovery Act that encouraged
incineration and other alternatives to landfilling.33 The first commercial incinerator to
take industrial waste in Texas was operated in nearby Deer Park by Rollins
Environmental Services starting in 1981. The project was the focus of intense opposition
as it was the first commercial incinerator to receive a permit to burn polychlorinated
biphenyls (PCBs). While the Stauffer plant did not accept PCBs, it did burn organic
wastes such as benzene and carbon tetrachloride, both of which are carcinogenic. Still,
the company avoided serious opposition by engaging with community leaders, residents,
public officials, and environmental experts at local universities to explain plant
operations. These meetings were set up in addition to regular discussions held following
two sulfuric acid leaks in 1980, one of which sent 54 to the hospital. Community leaders,
28 Jill Burns, Field Investigator, Region 12, TNRCC to File, Re: Rhodia, Incorporated, June 18,1999.
29 As companies merge, so do their corporate nameplaces. Houston Chronicle, January 9,1990 at 4
(Business); Stauffer Chemical being sold in $1.69 billion deal. Houston Chronicle, June 6,1987 at 2
(Business).
30 Interview with former Plant Manager, Rhone Poulenc Basic Chemicals, April 1,2002 via telephone.
31 Supra note 30.
32 Britt, B. & Warren, S. (1986). Gasoline leaks drive local residents away. Houston Chronicle, December
14,1986 at 1.
33 Dawson, B. (1985). Permit sought to commercially incinerate hazardous wastes. Houston Chronicle,
July 25,1985 at 21.
-------
including Councilman Ben Reyes, believed that the company had "cleaned up its act" in
the few years directly preceding their move into hazardous waste incineration.34
Members of the three surrounding neighborhoods speak of serious environmental
problems as diminishing by the time Rhone Poulenc requested a permit modification in
1991. Residents of Smith Addition recall a facility that was once located "in front of
Rhone Poulenc" that consisted of a series of storage tanks that "used to catch fire and you
could feel the heat standing over here."35 The Hill Chemical Company, located near
Manchester and San Saba Streets where Smith Addition begins, experienced a gasoline
tank leak hi 1986 that forced 50 families to leave their homes.36 A blaze also occurred m
November, 1988 when a pipe carrying oil into a diesel heater ruptured at Hill Chemical.37
A third major incident involved a lightning-induced fuel oil tank explosion at the same
facility that could be heard for five miles and sent flames 200 feet in the air hi September,
1990. Harrisburg residents recall a facility known as Eddie Oil Refinery as **the only
plant that we really had trouble with":
It's no more in existence, the one that was right, I live at a dead-end street, and across the track
was Eddie Oil Refinery. They changed its* name to Key Oil Refinery. And I can tell you about
mat because my brother worked there from the age of 18 until he passed away. That was the most
dangerous place that was close to us, because it was always exploding and putting out chemicals
and finally they closed it down, because it was just really unsafe... The back part of it ran right into
our street which was on Magnolia. The oil company itself, the refinery part is gone. They tore it
down. So that was the closest environmental problem we had to us39
Memories of such facilities and images of the particularly dramatic episodes that they
caused formed a mental baseline for the level of environmental quality that residents
experienced. They also shaped residents' perceptions of what further pollution reduction
efforts were needed and their evaluations of environmental performance at facilities that
remained. While Rhone Poulenc had to contend with the troubled past of Stauffer
Chemical, it was not perceived as the primary source of environmental problems by at
least two of its neighboring communities. And within Manchester, where Rhone
Poulenc's small relative contribution to area toxic emissions had yet to be understood, the
company had substantial room in which'to improve its image and relations with
concerned citizens. Stauffer Chemical's record of accidental releases as well as
permitted toxic releases was well-known to regulators and citizens alike, although the
company had succeeded in building support for some of its operational changes.40
34 Ibid.
35 Interview with Smith Addition residents, April 19,2002, in Smith Addition.
36 Supra note 32.
37 Kreps, M. & DiSessa, B. (1988). Pipeline inferno fizzles; residents return to homes. Houston Chronicle,
November 29,1988 at 13A.
38 Perry, E. (1990). Lightning may have sparked tank blast. Houston Chronicle, September 16,1990 at
30A.
39 Interview with Harrisburg residents, April 19,2002, in Harrisburg.
40 Interview with Texas Natural Resources Conservation Commission official, August 14,2002 via
telephone.
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Rhodia Annual TRI Emissions
The emerging regulatory framework was in large part responsible for Rhone Poulenc's
facility-wide emissions reductions starting in the late 1980's. One of the most effective
environmental statutes, Title III of the Superftmd Amendments and Reauthorization Act
(SARA) of 1986, directed industries mat met certain requirements to maintain inventories
of hazardous chemicals stored, processed, and emitted from their facilities.41 The release
of TRI data started in 1987. The data were made available through local libraries and
later the internet, and interpreted through analyses of the data comparing states, counties,
and industries in terms of relative emissions. These reports, by the EPA, the
Environmental Defense Fund, and other organizations, encouraged industries to pursue
both real cuts in emissions and
diversions of emissions to unreported
media (such as deep well
injections).42 Nevertheless, TRI
emissions dropped substantially at
many facilities, including Rhone
Poulenc's Manchester plant. By the
time residents began organizing
around the proposed permit
modification in 1991, the facility
accounted for a small percentage of
toxic emissions affecting the three
surrounding communities (see Figure
3 for one comparison).
1,000,000
600,000
600,000
400,000
200,000
0
Valero TRI Annual Emissions
2,000,000
1,500,000
1,000,000
500,000
0
1886 1990 1992 1994 1996 1996
Figure 3. Comparison of Rhone Poulenc (now Rhodia) and Valero
TRI Emissions, 1988-1999
The Dispute
On January 16,1991, proposed
actions regarding the Rhone Poulenc
facility began to appear on the
agenda of the Texas Water
Commission:
Item 31. Application by Rhone Poulenc Basic Chemicals Company (formerly Stauffer Chemical
Company) for a minor amendment to Permit No. HW-50095 which currently authorizes a
commercial industrial hazardous and non-hazardous solid waste storage and processing facility.
The facility is located at 8615 Manchester Road, west of Loop 610 East in the City of Houston,
Harris County, Texas43
41 Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986,42 U.S.C. §§
11001-11050 (1986) mandates that the Environmental Protection Agency provide the public with access to
all annual information collected on routine releases of certain chemicals (specifically those which foil
within Standard Industrial Classifications 20-39 and are released from facilities that employ ten or more
workers and use more than 10,000 pounds of a listed chemical within a calendar year. This information is
presented in a searchable index and in map form at http://www.scorecard.org.
Fung, A. and O'Rourke, D. (2000). Reinventing environmental regulation from the grassroots up:
explaining and expanding the success of the Toxics Release Inventory. Environmental Management, 25(2);
115-127.
43 Uncontested Agenda, Wednesday, January 16,1991, Texas Water Commission.
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The proposed change was listed as a "Class 2" modification. A class two modification
simply requires a company to issue a notice through the local paper and hold a public
hearing where they review the proposed changes to a facility. While Rhone Poulenc
considered its proposed changes "nothing of consequence," the dozens of residents that
attended initial meetings with the company were determined to call for a Class Three
format. Class Three applications undergo a formal discovery and evidentiary process and
in some respects mimic legal proceedings. At the time, the Texas Water Commission had
a legal department charged with handling the public interest aspects of permit
modifications. This department had the authority to alter applications and to move them
from Class Two to Class Three status.44
On November 21st, the company held an informational meeting at the JR Harris
Elementary School.45 The permitting manager, Floyd Dickerson, explained that it was
necessary to modify the permit to reflect changes in how the EPA classified several
hazardous waste materials currently recycled at the plant. For the 40 residents at the
meeting, most of whom had been recruited by the precinct judge by flier, it was their first
opportunity in years to voice their frustration with the plant. First, they did not feel that
placing an ad in the Houston Post and the Spanish language El Sol and notifying a few
residents by letter was sufficient. Some of the residents spoke of the dangers of living
near the facility. Diane Olmos told of her husband, who died at the age of 38 after living
adjacent to a toxic waste disposal company similar to Rhone Poulenc.46 Also of
importance was the presence of a number of important local elected officials, such as
State Senator John Whitmire, who due to redistricting had a strong Hispanic opponent
challenging him at the time.47 Rhone Poulenc's plant manager agreed to make a more
concerted effort to notify Manchester residents of a second meeting, which was planned
for January, 1992. By then, precinct judge Carol Alvarado was able to mobilize newly
elected councilor-at-large Gracie Saenz, State Representative Mario Gallegos, Gene
Green, a candidate for U.S. Congress, Rick Noriega, a candidate for State Representative,
and Mario Quinones, a civic
leader and retired local
businessman, among others.
Through a list of residents
provided by Alvarado, plant
manager Bill Colvin notified
most of the residents of a second
meeting, called a "community
day," scheduled for January 1992
at the community center. By the
time this second informational
meeting was over, it was clear to
Rhone Poulenc management that
they would have to contend with
Valero refinery adjacent to a Manchester home
44
Supra note 30.
45Stfpranote 15.
46 Ibid.
47 Interview of State Senator, April 18,2002 in Houston.
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a Class 3 modification process. Alvarado had convinced the TWC to require a formal
hearing.
Between the "community day" and the formal hearing, several developments began to
increase the community's leverage over the permit modification process. Timing became
an important factor as the process expanded. Rhone Poulenc had customers who were
already shipping waste to the Manchester facility that would in several months be
reclassified. Second, commercial hazardous waste incinerators were becoming some of
the most visible targets of environmental groups in the state. Dubbed the "new
environmental menace," multi-million dollar incinerator projects were surfacing all over
the country, in response to RCRA amendments that imposed strict requirements for the
operation of hazardous waste landfills, such as the installation of double liners.48
Houston's Chemical Services had just won approval to build the fourth commercial
hazardous waste incinerator in the state, and the many elected officials rallying around
the Manchester community were well aware of the growing public concern over such
facilities. Finally, on July 16th, a toxic cloud of sulfur dioxide gas was released at the
Rhone Poulenc facility, sending 30 plant workers to the hospital (including 20 from
Newpark Shipbuilding and Repair, located across the Ship Channel).49 The accident was
caused by a two-inch pipe that broke as a truck was being moved at the plant's loading
site. Importantly, the latter two developments heightened resident awareness of the risks
posed by the facility at large, rather than the specific operations mentioned in the
proposed modification. The sulfur dioxide incident increased regulatory scrutiny of the
facility, which faced potential occupational health and safety as well as environmental
violations by the TWC, OSHA, and the City of Houston.
The hearing, held on June 30th, began with a hearing examiner explaining that the focus
of the meeting would be restricted to the proposed permit changes. Local residents, who
had by this time had sought the assistance of Texans United, had other plans. Areas of
concern, some of which barely overlapped with Rhone Poulenc's operations (let alone
proposed changes), were many and diffuse, including railway traffic and blockages to the
streets, chemical releases to air, water, and soil,50 truck traffic on residential streets,
citizen participation in site-specific decisions and awareness of potential risks posed by
the site, and emergency preparedness. While Rhone Poulenc did not have the ability to
address some of the residents' concerns, they agreed to meet with a small group of
residents to discuss conditions for their dropping all opposition to the proposed
modifications.
Dispute Resolution
Manchester residents were the only citizens to request party status to the hearing process,
following the advice of TU. Because of this, the exclusion of Smith Addition and
48 Morris, J. & Dawson, B. (1990). Nobody's neutral about toxic waste incinerators. Houston Chronicle,
October 22,1990 at 11 A.
49 Perry, E. (1992). 27 injured by toxic fumes at chemical plant. Houston Chronicle, June 17,1992 at 9A.
50 Although Rhone Poulenc accounted for a very small fraction of these emissions. In 1991, TRI emissions
from the facility totaled 19,000 pounds compared with half a million pounds by the Valero refinery, which
encircled Manchester to the East.
10
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Harrisburg residents was not of concern to any of the parties. Plant management was
aware of these communities, particularly Smith Addition, described as "closer to the plant
but not nearly as organized." Providing a forum in which the concerns and interests of
surrounding communities could be aired was also not necessary given the purpose of the
discussions agreed to by the plant manager. Knowing that changes hi waste
classifications were not going to happen for several months, the company saw the
proposed discussions as an opportunity to establish a structured relationship with nearby
residents, which had not materialized since Rhone Poulenc had assumed ownership of the
facility:
At that time, because I had quite a bit of time. These changes in the classifications weren't
actually going to take place for several months, and I knew I had the time to try to work with the
community and see if I could resolve this. And one of our goals was to come out of mis with an
advisory panel And so that's the way I sort of approached this: you know, if you want to have an
agreement, our agreement will be to work with the community, but we're going to have to
organize a group, an advisory committee, and this document will basically establish ground rules
on how we'll work and who will be on it and what issues we're going to talk about52
Plant management entered negotiations confident that the Texas Water Commission
would grant their permit modification. They also were aware of the growing scrutiny that
their facility was receiving, and of the hostile community relations that would prevail
should talks break down.
Texans United viewed contested hearings as an assured means of "getting to the table"
with a company:
We didn't have lawyers, they did, and they were going to have to pay their lawyers, and the
discovery process -1 mean you get to look at all their records about complaints, upsets, relevant to
the permit it was an air pollution permit. So we could have found our about all their releases, near
misses, accidents, and we would have gone after all of that. And there's a hearing examiner that
acts like a judge and what they always do, before they go through this formal contested case
hearing, is they try to get the parties together and say you guys talk about this and see if you can
resolve it before this hearing. The hearing's expensive for the state, a lot of work for everyone and
they want to avoid it. So that kind of automatically puts you at the table with the company.
As the community began to prepare to negotiate with facility management, TU was still
learning how to structure good neighbor agreements, which until then were usually typed
on one or two sheets of paper and did not include provisions for implementing audit
findings or ensuring on-going citizen involvement.53 As stated, one of its earlier lessons
was to narrow down what a community wanted to accomplish when discussing a given
facility with its management and legal representatives. TU and local residents carried out
an informal discovery process prior to the hearings in order to focus their objectives, even
though then* demands would remain wide-ranging. Residents credit TU for "taking us
through the discovery process."54 In addition to helping residents request party status,
"Supra note 30.
53 See, for example, Settlement Agreement with Merichem Company (no date) and Settlement (with ARCO
Chemical), February 14, 1992.
54 Supra note 17.
11
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TU shared its knowledge of how to ask for certain kinds of information, summarized
materials in terms of what they revealed regarding community impacts, and helped
residents prioritize what they needed to understand from the outset.55 Documents such as
air pollution data, enforcement documents, and other public records in agency files
(Texas Air Control Board, Texas Water Commission, Harris County Pollution Board)
were used to give an indication of site-specific problems. As TU did not have any legal
or technical capacity, a group of TU staff met with residents to pour through the
documents and extract broad trends and concerns. These included information sharing
(Rhone Poulenc had some SO2 monitors in operation but had no means of distributing the
results to neighboring towns), truck traffic to and from the facility, and emergency
preparedness (Rhone Poulenc lacked an emergency notification system). TU experts
were unable to figure out how the company could ensure further emissions reductions at
its facility, and a review of their fugitive emissions showed that state regulations were
already fairly stringent as to how long broken valves and flanges could be kept on a
replacement list. As the contested case hearing process had not begun, the information
available to residents and TU was limited. Discovery during a contested case hearing
process allows residents to access anything related to the facility's emissions that is not
proprietary: more detailed enforcement documents, interoffice communications about
pollution events, and a variety of reports used by facility management to trace problems
as they develop on-site.
Throughout negotiations with Rhone Poulenc and implementation of the agreement that
followed, residents became increasingly acquainted with the facility's operations. It is
instructive to consider how such a plant dealt with emissions on a daily basis, as it
provides clues as to the extent to which residents' desired changes were acceptable or
even possible from a permit applicant's perspective. Facility operators, engineers, and
environmental professionals kept track of emissions through a variety of programs, some
of which are mandated by their various permits and some of which are driven by site and
upper management. Rhone Poulenc's permits called for the plant to monitor sulfur
dioxide, nitrogen oxide, particulate matter, and hydrocarbon emissions, the latter
produced mostly from fugitive emissions.56 Because at one point Rhone Poulenc
maintained storage tanks at its property line adjacent to the former Eddie Oil refinery site,
the state set particularly stringent guidelines for fugitive emissions to make sure that
future owners of the site would be protected.
If you hod anything, 25 parts per million above background, which most places is 500 to a
thousand parts per million or even higher than that, it's an action level and we can have it repaired
within four hours"
These conditions took effect in 1987. In addition to an array of monitors established for
some chemicals, Rhone Poulenc was able to estimate emissions for others through trial
burn factors. Under state permit, the facility submitted Discharge Monitoring Reports on
a monthly basis that provided quantity and concentration figures for all **parameters"
"Swpranote 17.
96 Interview with Rhodia environmental professionals, April 23,2002, at Rhodia, Manchester, TX.
"ibid.
12
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(substances) used during that period.58 While the company engaged in pollution
reduction projects, it believed that there was a limit to the control the company had over
what is released in a given month:
This facility, we're not, there're not multiple changes occurring. It's the same project, same
materials coming in. There's very little variance in what we're doing out here.. .The thing about
this plant right here, is that we are an inorganic facility. So we don't - and what we do generate a
lot of stuff, like some of the protective personal equipment that we use, some waste oils and stuff
like that, we can burn on our permit ourselves. We generate ash from our furnace that is
hazardous by nature, and that is basically driven by how much throughput of hazardous waste and
our sulfiiric acid we burn there, so that's a function of production. Then we have a filter cake,
which is hazardous waste, based on some regulatory requirement, and that's again regenerated
based on the amount of throughput through the unit. And it's all wastewater. So it's, some of
these things we have, we really have no control. Business is high one year, down next year. The
other, only other thing we can, state classifies it as hazardous, because of the acidic nature, is our
wastewater here. And we have looked at ways of minimizing the amount of acid drips and stuff
like that in the sewer system, so it will minimize the amount of, you know. It's cost-effective, too,
because you don't have to neutralize everything. Those are the areas we can really come up with59
Much of the discussions with Manchester residents focused on these limitations to further
reducing emissions, caused by the stringency of existing permits and the nature of the
sulfur regeneration process. It was claimed that there was a narrow range of "lost
products" or emissions that if captured could be reprocessed and sold to various
industries. In addition, plant management stated that there was little that could be done to
change the facility's raw material feeds, which remained the same and fluctuated only
according to the needs of Rhone Poulenc's customers: refineries (catalysts), carpet
producers (fibers), and electroplaters (ultra-pure acid). But when one considers the
facility's improvement programs today, it becomes clear that there were approaches to
emissions reductions that could have been addressed during negotiations: reducing the
risk of releases and containing accidental spills. Presently, the plant uses a hazardous
operations methodology known as Layers of Protection Analysis (LOPA), which is a
systems design approach to isolating opportunities for releases, understanding how
protective devices or materials can fail, and ensuring that backups and secondary forms
of containment are hi place. A related initiative, mechanical integrity, is a records
maintenance and analysis approach whereby equipment standards for things that can
degrade or be corroded over time (pumps, gaskets, valves, pipelines) are researched.
Equipment that is then determined high-risk or is found to be no longer maintained at an
appropriate frequency is then addressed. These programs were not in existence when
negotiations began.
When negotiations commenced on August 24,1992, residents were not prepared to
scrutinize the corrosive effects of Rhone Poulenc's production process on its equipment,
or brainstorm potential management initiatives for dealing with this broad concern. With
limited access to expert opinions about the facility, Texans United tried to figure out how
Rhone Poulenc could reduce emissions, with limited success.
58 Permit No. TX007072, discharge numbers 101A and 001 A.
59%»ranote50.
13
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They had the best available pollution control technology at the time. Reducing emissions wasn't -
we couldn't get a handle on how they could do that. Now one of the things our expert looked at
was the whole issue of fugitive emissions. He went through the files and all of that, and I don't
think there was a recommendation that came out of that that they could do anything to further
reduce emissions60
In the absence of any known alternatives for emissions reductions, and lacking sufficient
understanding of the business to consider such issues as mechanical integrity, residents
and TU representatives focused on two kinds of proposals. It is important to note that
none of these were made in any particular order, as the meetings were not bounded by
groundrules or agendas (except for items proposed by plant management at the outset of
each meeting), or assisted by any outside facilitation. And while elected officials were
present at the first session, residents agreed to exclude them from negotiations. It was
argued that most of the officials did not have to live with the consequences of what was
being discussed. Further, they had an incentive to support an agreement that lacked
substantive changes so long as it offered them positive publicity. Thus, roughly 5-6
members of a community-based negotiating committee, two representatives from TU, the
plant manager, and a staff attorney from Rhone Poulenc discussed proposals at meetings
held at St. Alphonsus* (a local Catholic church) and in a conference room at the facility.
The first kind of proposal involved arrangements whereby the facility would create,
share, or help the community gather information. A second kind of proposal was more
controversial: duties that the facility would owe the community under various
circumstances. Table 1, which outlines the negotiation process, includes some of the
proposals made.
1 Supra note 24.
14
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Table 1. Manchester-Rhone Poulenc Permit Modification Negotiation Elements.
Harrisburg, or the businesses affected by a
2.
roads by railroad cara
3. Regulate truck traffic along
4.
5. Improve relations with the facility
, ;. ^" ^^\f-
/v&r^/' l^>^ v-* - ^>. -r">;v „ ?<;;
,5 rc ^^;te'<-v^^^ :^-
V4 r '^ . ^kvV?. ^--' VP" ] '-
f^—1"r'*"" ^r*i-
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citizen'a healthsui-vcy.
conditiuns)
15
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Residents realized early in the process that they would not be able to prevail in a
contested case hearing. This understanding encouraged concessions on their part, such as
decisions to drop most of TU's ideas for setting conditions for facility operations.
Residents and TU were also divided in terms of how to approach resident health.
Residents were strongly in favor of canvassing the neighborhood and collecting
information on disease symptoms. Plant representatives opposed the proposal outright,
believing the information would be inconclusive or simply misrepresentative of the
sources of various symptoms. TU was also against entering into such an indeterminate
cycle of talks over survey design, administration, analysis, and interpretation:
Just designing the health study could have been a whole separate negotiating process, and then
whether or not it's scientifically valid, and then you get the results and they're going to be
challenged. My position has always been, we don't have to get up there, we don't have to prove,
we don't have to prove scientifically that these plants are hurting people. It's enough that people
are sick, that they're complaining, that they can smell it; that's all the proof we need. That means
that the companies need to do everything they can to stop the damn pollution...Just the possibility
mat the plants might be causing the problem is enough that they should be doing everything they
can do to stop the pollution. It's kind of simple. And this whole thing about diverting us into this
whole battle to prove it's really a problem61
They had health concerns, and they wanted to bring hi people to do some kind of canvassing of the
neighborhood to document all of the health concerns throughout. And mis was a neighborhood
mat was right in the back of chemical plants, not just ours. I told them that we weren't willing to
do that unless it was a - if they wanted to do something that was a recognized method and the
technique they used was actually a recognized way of doing it and we had a non-biased group
come in and do it, then it wouldn't be a problem. We would provide an amount of money and it
would cost quite a bit more than that62
Division among representatives of Manchester was at times overt, as with the proposed
survey, and often subtler, in terms of the importance of an environmental audit vis-a-vis
changes that would immediately impact the community's sense of quality of life. In spite
of this, the process gained momentum, as the group set aside problematic ideas and
proposals and focused on items that concerned (a) sharing information, studies, and
scenarios that already had to be collected or created under various permits, (b) building
relationships through development of an advisory committee, and (c) adding resident
involvement to an environmental audit provision that was also required by the state. The
most important dynamic within this timeframe concerned how an initial set of proposals
would be oifered. TU, based on previous experience, was convinced that the first single
text should come from the company, as resident concerns and more appropriate wording
could be added within a framework that made the company feel more at ease. What was
put in writing was viewed by TU as a company's interpretation of what had been
discussed and what they wanted to propose. Residents, in then* opinion, should see how
the company perceived the negotiation process before they proceeded.
As the date of a subsequent hearing approached, the company used an implied division
between resident representatives and the broader community to encourage agreement.
While it is difficult to prove that this approach affected the final agreement, it is
"
Sw/vanoteSO.
16
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instructive in that community-corporate negotiations often hold the potential for
lopsidedness: residents include a number of different groups from within and outside a
given community while a company has a well-structured set of objectives and parameters
to follow during negotiations. After roughly 4-5 sessions, the plant manager approached
community leaders with an ultimatum:
It was getting close to the time for the hearing, and I just basically went in and said, you know,
we've met with you for a while, we've had a lot of people in from the community and we've
communicated to them what we're trying to do and we want to share with them and how we want
to get mem involved. But some of the stuff you're asking for is so far out that we're never going
to be able to agree to it. And if you don't back off on all this, then we're going to go back, we're
going to drop everything and go back to the public hearing, and not only will you not get anything
out of this but, based on some of your demands, that even the community looks on as ridiculous,
you're going to come out the bad guy on all of mis63
While the effects of such threats on an ultimate agreement cannot be verified (record-
keeping during these negotiations was almost nonexistent), the company's perception that
community representatives had divergent incentives to reach agreement is clear. A final
agreement, signed shortly before the next hearing was to occur, excluded proposals for
emissions reductions, resident control over facility operations, or meaningful assessment
of community health. Table 2 outlines the elements of the good neighbor agreement.
Table 2. Settlement Agreement Elements to Class 3 Modification, Permit HW-50095.
63
Ibid.
11
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Implementation
On December 16th 1992, the following action was taken by the Texas Water
Commission:
item 50. Consideration of Examiner's memorandum concerning the application of Rhone Poulenc
Basic Chemicals Company for a Class 3 Permit Modification to authorize the operation of a
hazardous waste incinerator storage and processing facility in Harris County, Texas
(Recommendation: Issuance)64
The examiner's memorandum was adopted and the modification was granted. The
Settlement Agreement became part of the permit and therefore prevailing regulations of
the facility for the duration of its operation. While the agreement was hailed as a "first"
in terms of "real access" to the facility, it did not depart from standard practice as
radically as suggested in media coverage. First, many of the agreement parameters
(including the audit, off-site monitoring, and data provision) were already required by
state law. In fact, the audit provisions were already a part of the facility's operational
permit. Items that were not already required (such as a health survey) remain
underdeveloped. TU has moved on to other struggles while much of the local leadership
that was instrumental in encouraging negotiations with Rhone Poulenc has left
Manchester. We will consider each of the major elements of the agreement in turn, and
then focus on overarching trends that have emerged since the GNA was finalized.
Accidents/Emergency Preparedness. As noted earlier, toxic releases from the
Manchester facility declined in the late 1980's and stabilized at approximately 19,000
tons per year. In addition, accidental releases became almost nonexistent at the plant.
Table 3 shows the history of plant episodes through the present.
Table 3. Incidents at 8615 Manchester Street, 1990-2002.65
Ftbraaiy 27,1990 Petroleum 95 gallon*
Januiry21,1992
June 12,1992
July 8.1992
64 Third Addendum to Uncontested Agenda, Wednesday, December 16,1992, Texas Water Commission.
63 Sources: Emergency Response Notification System and National Response Center databases, accessed
June 5,2002 by United States Environmental Protection Agency, Region 6 as part of Freedom of
Information Act request 06-RIN-00689-02, May 21,2002.
-------
The facility has averaged approximately one accidental release every two years during
GNA implementation. Residents are also better informed in the event of an episode,
through the emergency notification system that was designed as part of the GNA. The
company purchased a radio station (1290 FM), established an alarm system that could be
heard within a five mile radius of the plant (at a cost of $250,000), and began weekly
tests of the system every Saturday at noon,6 While the system has proven effective in
encouraging residents to shelter in place during the few accidents that have occurred, the
idea of a public warning system was actually being negotiated between residents and city
officials of a number of nearby cities (Channelview, Pasadena, Deer Park) before the
GNA was reached.67 In fact, dozens of chemical plants in the area had already agreed to
cover the costs of phase I construction of siren warning systems.68 As part of the Local
Emergency Planning Committees (LEPC's) mandated by EPCRA, communities were
working with area industries to plot public safety plans, use common computer programs,
and share warning systems, relying on community advisory panels for advice. While the
GNA secured a system for Manchester residents while progress continued at a slow pace
elsewhere, it is clear that pressure for a public warning system was building at nearby
facilities when Rhone Poulenc made its commitment to local residents.
Citizen Audit. Rhone Poulenc was already subject to an independent auditor's
assessment under Texas law when it incorporated an independent annual environmental
and safety audit program in the GNA.69 The only difference between what was
previously required and the GNA provision concerned the involvement of local residents
in the process. Citizens were to participate in the physical inspection of the plant, review
of documents, and interview of plant personnel. The GNA specified Dr. Ralph Cooper of
the American Institute of Hazardous Materials Management (an individual who had been
active in the drafting of RCRA) as the initial auditor. His report, issued several months
after the GNA was finalized, focused on several regulatory compliance and best
management practice issues where Rhone Poulenc stood to improve:
more attention should be given to the lay-down yard for possible recycling and other
reductions in the amount of materials in the yard
soil and other materials removed from the settling pond should be removed from the site
more frequently
the facility should develop and implement a program to make appearance of the facility a
matter of pride among employees at all levels
particular attention should be given to leaks of sulfur, appearance from the street, and
evident corrosion of the equipment
there seemed to be less concern regarding waste generated during normal industrial
operations than for waste received for incineration and residuals
should consider making more frequent hazardous waste and Texas waste classification
determinations
should record video and store tapes for a short period for post-incident analysis
66 Supra note 17; Interview with Manchester resident, April 22,2002 in Manchester, Interview with
Manchester resident, August 12,2002 via telephone; Supra note 26; Zuniga, J. (1995). A community's
work for safety pays off: Chemical company's siren alarm warns area residents of toxic leaks. Houston
Chronicle, July 16,1995 at 29A.
67 Haines, R. (1993). Cities near plants address fears. Houston Chronicle, January 3,1993 at 1C.
*JWi
69 31 TAC 305.147 and Section X TWC permit No. HW-50095.
19
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written emergency response plan is weak; should enhance the facility's programmatic
plant-wide analysis of potential accident events and their prevention (single master plan
is preferred rather than multiple plans for RCRA, Clean Water Act, etc.)
need to decide in advance when evacuation is necessary and what gear and
decontamination equipment is appropriate under different circumstances
more detailed analysis of the sources of acid losses to wastewater as well as the
generation of wastewater in total
evaluation of surface protection for secondary containment and other surfaces needed
given the fact that unprotected concrete rapidly degrades with acid exposure
materials used for line cleaning are burned in the incinerator; review of alternatives may
suggest cost-effective changes
plant should request delisting or permit modification for delisting scrubber sludge to
allow disposal in a non-hazardous waste landfill.70
These recommendations, some of which have been implemented (filter sludge was
delisted in 1999), point to the existence of ways to reduce accidental emissions and the
need to more purposefully counter the corrosive nature of the materials used at the
facility. Further joint development of additional recommendations has not occurred,
however. Each year, in accordance with state regulations, the plant has issued a public
notice for selection of an independent auditor, and held a public meeting with little or no
attendance. There has never been another independent audit of the facility.71
Community Advisory Council. Rhone Poulenc's primary objective in negotiating
with Manchester residents was to institutionalize a relationship between the plant and
local residents. The GNA includes specific instructions ("groundrules" as the former
plant manager called them) for how a Community Advisory Council (CAC) should be set
up: it should be geographically representative of the local community surrounding the
facility, be composed of no more than 25 members, include residents located within set
boundaries (north to Harrisburg Street, west to 97th Street, east of the plant to Evergreen
Street, and south of the plant to La Porte Freeway), set its own agenda, be notified by the
company of changes to hazardous waste transportation routes and shipments to the plant,
receive copies of ground water and surface water monitoring analyses on a monthly basis,
receive OSHA recordable accident information on a monthly basis, and work to review
the feasibility of a citizens* health survey. The CAC met monthly at first and now meets
once per quarter. At each meeting, two reports are provided to CAC members: a report
from the Environmental Manager and the state-mandated Discharge Monitoring Report,
Below is a sample of the Environmental Manager's report:
Rhodia, Inc. Manchester Plant
Monthly Citizens Advisory Committee Report
Month: January
Year: 2000
Have any changes been made to hazardous waste transportation routes? No
Number of hazardous waste shipments into the plant: 170/monlh
Copies of Permit Discharge Reports:
EPA(DMR)
RCRA Pond has been closed and no more groundwater monitoring necessary
Number of OSHA recordable accidents: 2
70 Independent Auditor's Report under 31 TAC 305,147 and Sec. X TWC Permit No. HW-50095.
71 Supra note 49.
20
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Leaders of the three civic organizations of Manchester, Smith Addition, and Harrisburg
sit on the CAC and praise the company's sustained involvement in local issues and
projects. For instance, Rhone Poulenc (and now Rhodia) has provided an annual $10,000
college scholarship award to a local high school student, cleaned sidewalks, painted
homes, provided a block of funds to be allocated to various groups, and improved Pizer
Park, across the street from the plant.72 Some residents have resigned from the Council,
frustrated by its focus on such projects that benefit individuals or segments of the
community rather than facility changes that will benefit residents at-large. Because of the
limited variance in terms of facility operations, Rhodia management agrees that the focus
of the CAC has shifted from explaining permits, modeling and monitoring results to
community improvements and awareness. In the event of an accident, Rhodia anticipates
the CAC meeting by developing an analysis of the incident, causation, and corrective
actions taken.
Railroad Tracks/Truck Traffic. Facility management has sought to address what
were arguably the most prevalent concerns of local residents in the early 1990's. Rhone
Poulenc created a routing system to keep truck traffic away from JR Harris Elementary
School, and to minimize exposure of any residential population to the movement of
hazardous materials. These changes were made in consultation with the CAC9 whereby
Rhone Poulenc explained restrictions hi its waste disposal contracts that could be used to
minimize local transportation risks. While not included in the GNA, the company also
appeared with residents in support of a grade separation and an overpass across Central
Avenue. The overpass would allow residents evacuating Manchester to cross over
Manchester Yard, one of several rail terminals serving the Ship Channel. The Houston
City Council approved funding
for a feasibility study for the
bridge in August, 1997.73
Conditions worsened in February
1998 with the merger of Union
Pacific and Southern Pacific Rail
Corporation.74 Union Pacific
reportedly gave preferential
treatment to moving their trains
through the city first, causing
even longer delays at railroad
crossings. Finally, the U.S.
House of Representatives passed
Figure 5. Railroad cars blocking Manchester Street on April 23,2002. | a transportation bill that included
72 Zuniga, J. (1994). Chemical plant is neighborly. Houston Chronicle, June 4,1994 at 27A; Pickler, N.
(1997). Residents help build playground at park. Houston Chronicle, June 29,1997 at 38A; Plant workers
make sidewalk safer for southeast area pupils, parents. Houston Chronicle, May 9,2001 at 7 (This Week).
73 Dawson, B. (1997). Living with pollution Part I: Communities in industrial sections of Houston grapple
with pollution with varying success. Houston Chronicle, August 3,1997 at 1A.
74 Brewer, S. (1998). Idling trains strain patience of motorists. Houston Chronicle, February 9,1998 at
13A.
21
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$16 million for the grade separation in June, 1998.75
Information. Most elements of the GNA involved one-time or monthly provision
of information already mandated by state law, such as hazard assessments, dispersion
modeling, and a consequence analysis. The exception, an agreement to "review the
feasibility of a citizens' health survey," has never been attempted. Facility management
admits that the sum promised in the ONA, $4,000, was barely a fraction of what would
be needed for a cross-sectional epidemiological study of Manchester and a carefully
selected control community. Residents continue to express their concerns regarding the
prevalence of cancer in the area. Yet, the CAC has to date been unable to mobilize
sufficient support to initiate serious talks with Rhodia about such a study.
Discussion
A very telling announcement was made by a number of industries, including Rhone
Poulenc, five days before its permit modification was issued in December, 1992: they
would agree to take part in the TWC's Clean Industries 2000 program.76 In order to
qualify for the program, a company had to agree to either make at least a 50% reduction
in its generation of toxic substances, or commit to a similar reduction in its direct release.
The news was followed by word that area industries had been working since at least the
late 1980's to develop public warning systems. A more recent conclusion to negotiations
between residents and officials with neighboring Lyondell and Equistar Chemicals has
lead to substantial emissions cuts.77 The latter agreement was reached with two facilities
that together released 20% of the benzene in Harris County. With the help of a facilitator
who also managed discussions on the area CAP, residents met with the companies 32
tunes following planned facility expansions in 1997 that were later scrapped. The
discussions yielded changes in plant procedures, processes, and equipment, and have
already reduced emissions of benzene by 40% and butadiene by 41%.
Following its inclusion in Clean Industries 2000, Rhodia's toxic emissions have not been
significantly reduced, although total production-related waste has fallen dramatically.78
The above developments suggest that improvements hi Manchester-Rhodia relations
(achieved through regular explanations of operations to the CAC, community
improvement projects, and a near elimination of facility episodes) mask some potentially
missed opportunities. Current projects at the facility, such as its Layers of Protection
Analysis and mechanical integrity programs as well as reductions in production-related
waste suggest that there was in fact room for improvement in terms of how the facility
produced and handled its waste streams when the GNA was negotiated. Indeed, the sole
independent audit performed at the site unearthed concerns with corrosive materials and
73 Feldstein, D. (1998). Transportation bill increases spending for projects in Texas. Houston Chronicle,
June 10,1998 at 17A.
76 Dawson, B. (1992). 75 facilities promise to cut emissions under state plan. Houston Chronicle,
December 11,1992 at 36A.
77 Dawson, B. (2000). Channelview project seen as model in cutting pollution. Houston Chronicle,
November 15,2000 at 31A.
71 Toxic air releases were 24,218 pounds in 1992 and 25,765 pounds in 2000 (Rhodia did not have any
water, land, or underground injections of toxicants in these years). At the same time total production-
related waste fell from 14,429,232 pounds in 1992 to 9,261,910 pounds in 2000. Supra note 18.
22
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secondary containment of spills that could have been further explored with residents.
The facility's permit, reissued on December 14,2000, calls for a five year Source
Reduction and Waste Minimization Plan in addition to an annual report submitted to the
TNRCC. The GNA has provided scant means of involving residents in mandated
source reduction planning.
As this agreement was the first of its kind, it most strongly reflects the need to develop
means of institutionalizing a new relationship, based in large part on information sharing,
in ways that will encourage further improvements to environmental quality and
operational efficiency. Nothing in the GNA anticipated the possibility of such joint
efforts, or how they could be linked to those of neighboring industries. As Rhone
Poulenc continued to hold community events attended by hundreds of residents, and
hired a local business leader to offer tours of the plant, residents, particularly senior
citizens, continued to feel as though an opportunity had been squandered. Carol
Alvarado, sensing this undercurrent of disappointment, announced in 1997 that she
wanted to engage nearby industries in talks about ways to reduce routine emissions,
through a focus on production, technology, purchasing, and updating equipment.80
Now, the community, without the constant presence of Alvarado and other seasoned
leaders, has to press for these improvements with a more transient, preoccupied, and in
some respects assured population than what had endured high-profile accidents in the
early 1990's. Residents currently lack the assistance of experienced community
organizers such as those employed by Texans United. Their new civic club leader,
employed by Rhodia to help maintain Pizer Park, believes that the plant and other area
facilities are responsive to the community's requests. At a recent meeting of the civic
club, members of the Southeast Chapter of Mothers for Clean Air encouraged residents to
join a local "bucket brigade."81 Their demonstration of how to use the air sampling
technology was met without a single question or volunteer. The dozen residents at the
meeting turned to more immediate concerns, such as traffic safety.
In 2000, Rhodia successfully renewed its RCRA Permit. CAC approval was used in part
to request exemption from the required installation of a hydrocarbon and opacity
monitor.82 Long before renewal, the benefits to Rhodia of structured relations with
residents were made clear, in the lack of opposition to other minor permit modifications,
positive media coverage, and accidents that did not result hi legal action or increased
regulatory scrutiny. Residents negotiating future good neighbor agreements must ask
themselves: Were the conditions of Manchester, Smith Addition, and Harrisburg
similarly improved because o/the GNA? In developing the agreement with Manchester
residents, facility management was able to anticipate regulatory changes and respond to
regional trends in a matter that appeared groundbreaking. Indeed, from the standpoint of
community-corporate relations at the time, it was. Still, these relations were created at
79 Permit for Industrial Solid Waste Management Site issued under provisions of Texas Health and Safety
Code Ann. Chapter 361, Permit No. HW-50095-001 issued to Rhodia Inc., December 14, 2000.
81 Observation of April 17, 2002 meeting of the Manchester Civic Club.
82 Svpra note 56; Order, Application of Rhodia Inc. for a Regulatory Flexibility Order Exempting Rhodia
from the Requirements of 30 Tex. Admin. Code Sec. 1 1 1.127, July 7, 2000.
23
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little or no cost to the company over the years when compared with what could have been
expected of the facility. They also split the most concerned segment of the population,
the senior citizens, into two groups: representatives who received constant updates and
developed vested interests in their relationship with the plant, and outsides, who never
saw their true interests (i.e., health) addressed. In an unstructured, unassisted negotiation
setting, Rhone Poulenc was able to take bits and pieces of resident concerns and create an
acceptable proposal given anticipated constraints. Future community-corporate
negotiations will be judged by the extent to which they can secure and perpetuate resident
involvement in purposive facility change that goes above and beyond the "projected
status quo."
24
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Seeking Good Neighbor Agreements in California
Gregg P. Macey
Parti.
"The Piecemeal Agreement"
The Chevron agreement is interesting because it's basically pieced together from so many
different pieces of paper, you've got the city council and the air district and the planning
commission so it's a peculiar thing. Because it's on so many different pieces of paper, it's hard to
enforce - Richard Drury, Managing Attorney, Communities for a Better Environment
Background Rarely has environmental regulation necessitated such an infusion of
capital funds or the need for timely public participation as the Clean Air Act's (CAA)
motor gasoline requirements. The regulations, along with the California Air Resources
Board's (CARB) Phase 2 reformulated gasoline rules, required changes in the
composition of motor fuels, which in turn forced modifications to the petroleum
refineries that produced them.1 Industry estimates for the capital costs of complying with
the CAA Amendments ranged initially from $35-40 billion. In some cases, it made
sense for certain refineries to close down rather than upgrade their facilities at
considerable risk to the company. This potential wave of refinery closings came at the
tail end of a period of steady decline in the number of refineries operating in the United
States. The Department of Energy counted 176 such facilities in 1994, compared to 301
in 1982.3 Most of the refineries involved in this wave of closings were small, 50,000
barrel per day plants that could not justify the high cost of meeting the new product
standards. At the same time, demand for refined petroleum products continued to rise, a
trend that was met by increased capacity and utilization rates at existing plants and
through a heavier reliance on imported finished products.4
1 Scherr, R.C., Smalley, G.A., & Norman, M.E. (1989). Clean Air Amendments put big burden on refinery
planners. Oil and Gas Journal, 89(23): 35-38; Hadder.G.R. (1992). Future refining impacts of the Clean
Air Act Amendments. Energy, 17(9): 857-868.
2 Cheremisinoff, N.P. (2001). Handbook of Pollution Prevention Practices. New York: Marcel Dekker, Inc.
3 Ibid.
4Khadimally,RA.(1990). Job losses, refinery cuts. Oil and Gas Journal, 90(10): 8.
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Figure I. Select Richmond Communities and the Chevron Refinery.
Chevron
Refinery
The new regulations affected the operations of large-scale refiners as well as smaller,
independent (no upstream production capability) firms. Prior to 1990, when the CAA
Amendments were passed, Chevron Corporation ranked 11th on the Fortune 500's list of
America's largest industrial companies, with annual sales of over $25 billion.5 The
corporation owned and operated a massive infrastructure, including five refineries and a
network of service stations on the West Coast alone.6 Other companies relied on this
network for their very survival. For instance, when Chevron decided to construct a
cogeneration plant that would provide electricity for its Richmond refinery, Pacific Gas
and Electric stood to lose more than $60 million annually.7 The city of Richmond, host
to the sprawling, 2,900 acre facility occupying almost an entire peninsula near San
Francisco Bay, received its share of benefits from the refinery. Twenty percent of the
city's general fund revenues and 44% of the jobs were made possible, directly or
indirectly, through the operation of Chevron's Richmond refinery.8
5 Los Angeles Times (1989). List of Top 500 Industrial Firms. Los Angeles Times, April 5,1989, p. B6,
6 Lee, P. (1989). Pumping Life into Chevron. Los Angeles Times, December 4,1989, p. Dl.
7 Pelline, J. (1990). Chevron Modernization Outlay Put at $13 Billion. Saw Francisco Chronicle, March 9,
1990, p. Cl; Chevron (1992). Chevron's Largest Cogen Plant Comes to Life After Super Start-up.
Dialogue, 44 (November 1992), p. 1.
8 Hannan, M.D. (1994). Letter to City of Richmond Festival by the Bay from M.D. Haonan, General
Manager, Chevron U.S.A. Products Company Richmond Refinery, January 13,1994.
-------
The City of Richmond, chosen as the terminus for the Santa Fe Railroad, was
incorporated in 1905.9 The region's transportation networks encouraged many
companies to locate in fee city, including Standard Oil, which purchased 85 acres along
the shoreline for $15,000 and built the world's second largest refinery in the area in
1902.10 Standard Oil was followed by Western Pipe and Steel Company shortly
thereafter. The residential population of Richmond did not see a substantial increase until
World War II, when the Kaiser Permanente Shipyard was transformed into a facility
capable of producing one ship per day.11 The wartime production efforts in Richmond
encouraged southern black farmers to migrate to the region. Richmond's population
expanded from 23,642 before the war to over 100,000. Following the war, African-
Americans remained in the city. By 1990, they accounted for roughly 50% of the
population, while Latino and Asian populations encompassed 15 and 8 percent of the city,
respectively.13 The city is divided into roughly 40 neighborhoods, each of which
maintains a neighborhood council that functions as an advisory body to the city council
and mayor.14 Of the fourteen neighborhoods located closest to industrial corridors, the
population is between 72 and 94% African-American.15 The comparative location of
industry and minority residential neighborhoods encouraged an environmental
organization to draft one of the first empirical studies of environmental inequity, entitled
Richmond at Risk, in 1989.16
Despite its contributions to the fiscal health of the city, the presence of one of the most
profitable companies in the world was not well-received by all in Richmond. By 1982,
Chevron's Richmond refinery was considered the San Francisco Bay area's largest single
polluter.17 This distinction was garnered hi a city that played host to a cluster of roughly
350 petrochemical facilities, including the refinery, Chevron Ortho pesticide plant (now
General Chemical), Witco Chemical, Airco Industrial Gases, and ICI pesticide plant
(formerly Stauffer Chemical).18 Each of these facilities handled hazardous waste, with
Chevron Ortho alone accounting for over 40% of the hazardous waste in Richmond.
Despite its efforts to reduce toxic wastewater discharges and air emissions, Chevron
remained among the top five emitters of toxic waste in Contra Costa County in the early
9 National History Day (2000). A Case Study of War and the Transfoimation of Communities; Richmond,
California, www.nati6nalhistorvdav.org/03 educators/2000/richmond.htm. accessed October 1,2002.
10 Diringer, £. (1992). Big Industry Under Fire in East Bay: Contra Costa County homeowners live in fear
of toxic disaster. San Francisco Chronicle, Jury 6,1992, p. Al.
11 Citizens for a Better Environment (1989). Richmond at Risk: Community Demographics and Toxic
Hazards from Industrial Polluters. Oakland, CA: CBE.
12 Ibid.
13 Bureau of the Census (1990). Census data for zip code 94801.
14 City of Richmond (2002). Richmond Active Neighborhood Councils and Groups.
www.kcrt.com/specialfeatures/neighbor/tndex.html. accessed October 1,2002.
15 Reich, P.L. (1992). Greening the ghetto: A theory of environmental race discrimination. University of
Kansas Law Review, 41: 271.
16Sapranote 11.
17 WUdermuth, J, (1990). Conservationists Sue to Force US to Set Bay Water Standards: Groups Say State
has Failed to Take. San Francisco Chronicle, April 18,1990, p. A4.
18 Billiard, R. (1993). Anatomy of environmental racism and the environmental justice movement. InR.
Bullard (Ed.), Confronting Environmental Racism: Voices from the Grassroots. Boston: South End Press.
-------
1990's.19 In addition to emitting over 300,000 pounds of toxic waste per year, the
Chevron refinery experienced numerous accidental releases in the early 1990's. From
1992-1994, the facility averaged 45 "episodes," or accidental releases and spills, per
year.20 These accidents included some high-profile events. Table 1 outlines the episodes
and regulatory violations at the Chevron Richmond refinery to receive media attention in
the late 1980's and early 1990's:
Table 1. Refinery Episodes and Events to Receive Media Coverage, 1988-1992.
^^4^^^"n^€w^t^^»w\ii^m^^^^ ^ * - * *--' -•
v j~f «s» 4i* •*<* 1»®! 4ra,T,-J r* "• fj-t » Xffi
'Vv-ft l^^Mm^^im s&
c»w« sweep through Richmond, wafting Bw*y fine gr»y dust from refinery;
Sept 10,1992
Source: Lexis-Nexis search, California newspapers, 1988-1992.
Figure 2 provides an historical account of plant violations and fines assessed for
violations at the refinery by the Bay Area Air Quality Management District. As the
number of violations recorded for the facility rose from three in 1989 to 83 in 1997, the
value of fines assessed fell from an average of over $10,000 to $400 hi the same period.
It was at a peak of agency scrutiny, in 1993, when Chevron began to publicly discuss
desired modifications for the refinery. These improvements including a project designed
to meet the requirements of state and federal "clean fuels" regulations.
20 Personal communication, Bay Area Air Quality Management District, July 20,2001.
-------
1968 1990 1992 1994 1996 1998 2000
Figure 2. Fines Collected by AQMD for Violations at Chevron Refinery,
1988-2000.
The Chevron facility
was part of a network
of competing
refineries located in
areas surrounding the
East Bay, including
Exxon, Tosco, and
Pacific Refining.21
Shell operated an
additional refinery in
neighboring
Martinez.2 Chevron
was not the first
facility to move ahead
with plans to comply with the Reformulated Fuel Project (RFP). Pacific Refining
Company and Shell Oil Company advanced plans for the RFP in 1993. These proposed
projects gave a regional environmental organization, Citizens for a Better Environment
(CBE), significant experience in investigating and commenting on project impacts
stemming from the Clean Fuels program. A non-profit environmental advocacy group
composed of organizers, scientists, and attorneys, CBE became aware of the nexus
between race and environmental quality issues through its research of the Richmond
community in the late 1980's. Its scientists analyzed each of the environmental impact
reports issued for the RFP, starting with Shell Oil.
Shell was our first good neighbor agreement and it was fairly easy. Although Shell's got a really
bad reputation in Nigeria and I'm sure that they are doing terrible things. But here in Martinez
where they have the refinery, they have historically hired from the local community, supported
local community organizations and have really positive relationships with the community there,
largely. And they came, they agreed to settle this thing I'd say within a month or two. 1 was
really surprised.25
CBE found it difficult to mobilize opposition to the project, although it was ultimately
successful in encouraging Shell to agree to a set of conditions for its receipt of a
construction permit. It relied on a limited group of residents who lived along the
fenceline of the facility, as well as citizen groups such as Communities for a Safe
Environment.
In the case of Shell, because they have better relations with the community, there are less people
who want to take them on. There is a group of folks who live right up next to the fenceline that
we work with, and they are understandably concerned about emissions and odors that come out,
but it's a much smaller group than say the folks who live next to Tosco, where they have had four
21 Pelline, J. (1989). Chevron's Richmond Plan May Hurt PG&E. San Francisco Chronicle, October 5,
1989, p. Bl.
22 Nolle, C. (1990). Tosco Ordered to Clean Up Leak: East Bay Refinery Admits it has Huge Underground
Pool of Crude Oil San Francisco Chronicle, June 21,1990, p. A6.
23 Interview of Attorney, Communities for a Better Environment (formerly called Citizens for a Better
Environment), June 6,2002, in Oakland.
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fatalities at that plant over the last two years. Huge explosions, workers literally dying and
communities getting exposed to all kinds of nasty stuff. So around Tosco, it's easy, around Shell,
it's harder, and there are other refineries in between. Chevron's in between.14
Communities for a Safe Environment (CSE), a citizen group based in Martinez, brought
prior experience with community-corporate negotiation to the dispute with Shell Oil.
Their first attempt to secure a good neighbor agreement occurred under conditions that
mirrored those in Manchester, TX. As in Manchester, Rhone Poulenc sought to build a
commercial industrial incinerator at its Martinez plant, one of five in operation at the time.
They're a sulfur recycling plant. You're really talking about a new use, and you're talking about
transporting hazardous materials to be burned in their furnace and that got a lot of people upset.
Rhone Poulenc ended up having an explosion. Killed one person, severely injured another. But as
a result of that, they made an agreement with the community and the city council that they would
not attempt to bring up the issue again of putting the incinerator there. And they also agreed as
part of this to a settlement with the community and the city where they would provide a million
dollar settlement and of mat $500,000 would be cash and the rest would be in various types of
services. A foundation was established as a result of mat and money given through that
foundation to various groups that applied for grants from there. The other $500,000 was in-kind
donations. Maybe buying computers for the school, doing some work on the marsh for
rehabilitation. They changed all the valves that had that potential. What else did they do? I
believe there was some relocation because they had to rebuild, mere was some relocation of where
part of the plant was mat blew up. There was also as a result of that, a reformulation of the type of
acid mat was coming over from Shell. They actually reformulated that so it had a lower explosive
point.23
The good neighbor agreement with Shell, by contrast, focused almost exclusively on
pollution reduction and monitoring capabilities. In a 77-page response to Shell's EIR,
CBE outlined the focus of its objections to the project: Its failure to consider alternative
approaches that would minimize or eliminate further emissions of volatile organic
compounds, selenium, coke dust, and other hazardous materials.26 CBE advanced several
solutions to project impacts, including use of cleaner crude oil, use of bellows valves to
reduce fugitive emissions, recycling selenium on-site, reduction of hazardous substances
on-site, use of early warning systems, rinding an alternative to MTBE (a gasoline
additive), use of sensitive infra-red monitoring equipment to identify air pollutants, and
hiring a community technical advisor to monitor implementation. After talks with a CBE
attorney and CSE, Shell agreed to purchase and sit on $390,000 worth of air pollution
credits from nearby San Jose.27 They also agreed to install a fenceline monitoring system,
the utility of which has been question by CSE members.
They had a monitor set up at somebody's house. A single beam stretching across and it was very
primitive and there was an argument as to whether that was the best technology and Shell won and
the environmental groups lost For what they were testing for, they said it was the best, because
they said that you can't test for certain types of the chemicals crossing it and that a lot of them
weren't what you were looking for in the first place. So there would be no point to that. And they
were supposed to provide information to the community group and to CBE on an ongoing basis.
34 Ibid.
23 Interview of Board Member, Communities for a Safe Environment, June 5,2002, in Martinez.
26 Citizens for a Better Environment (1993). Comments on Shell Oil Company Clean Fuels Project DEIR,
June 21,1993.
27 Supra note 25.
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And if that happened it didn't happen with the group. If CBE was provided the information, I
doubt that they provided much for any extended period of time. Possibly after it was first set up
and then it sort of fell by the wayside. As far as I know, the monitor is still there.28
The Rhone Poulenc and Shell agreements led to the establishment of community advisory
panels, which in the case of Shell was dominated by former Shell employees. Still,
Martinez residents and Shell were able to agree to further improvements that were not a
part of their good neighbor agreement, including trucking routes and hours of operation
and the location of a coke storage unit on Shell's property.
CBE's next intervention occurred in the city of Hercules, where the Pacific Refinery
issued a draft EIR for its version of the RFP. The project, according to CBE, represented
a major risk to nearby residents, as it called for the construction of a number of refining
units previously not in existence at the site: an alkylation complex, an isomerization unit,
a fluid catalytic cracking complex, a hydrogen plant, and a sulfuric acid reclamation
complex.29 CBE argued that as these units were put in operation and run in different
combinations over the course of three years, a growing threat of accidents would accrue.
The new units were to be placed in close proximity to residences. Some of the proposed
units had been implicated in major accidents in the Bay Area, including a sulfuric acid
reclamation plant model that was responsible for the Rhone Poulenc accident in Martinez
and a General Chemical release that sent more than 20,000 people to area hospitals.30
A final experience with community-corporate negotiations before the Chevron project
occurred between CBE, residents of Crockett, and C&H Sugar Company, which sought
to construct a cogeneration unit for the world's second-largest sugar refinery.
So when we started hearing about how they were going to site this powerplant virtually across the
street from some of our neighbors, we were appalled. We couldn't believe that it could happen.
So I became involved that way more through, I was concerned with I had one child and I was
pregnant at the time, and we were concerned about the chemical fallout. We were also concerned
about the chemicals that they used in the process because they were using an ammonia and it was
going to be in a tank that was gonna be situated right on the curve of the railroad track. There
were several items about the powerplant they were proposing that we thought were crazy to be
putting so close to a neighborhood of 3200 people... And then as I got into the process I was even
more upset. Because it was even more reckless in the way that they were trying to put this thing
28 Supra note 25. See also J. May (1993). Memorandum to Keith Howard, representing Shell Oil from
Julia May, Citizens for a Better Environment, September 9, 1993 ("The remote sensor fenceline monitor
pilot project will evaluate either odors, accidental releases, cancer-causing or other toxic ongoing releases,
VOC emissions, or some combination of these. A work plan for the pilot project will be provided by Shell
to CSE and CBE by March of 1994. The pilot project will be installed by October of 1994. The length of
the pilot project will be mutually agreed upon through discussions by Shell, CSE, and CBE. Shell will
share the data from this project with CSE and CBE.").
29 Alkylation is used to produce high octane gasoline from the isobutene formed during catalytic cracking.
Alkylation joins compounds using either sulfuric acid or hydrofluoric acid catalysts. When sulfuric acid is
used, the sulfuric-acid must be regenerated in a sulfuric acid reclamation plant. An isomerization unit is
used to alter the arrangement of a molecule without adding or removing anything from the original
molecule. Fluid catalytic cracking uses heat, pressure, and catalyst to break larger hydrocarbon molecules
into smaller, lighter molecules. It can produce more gasoline with a higher octane than previous methods.
30 Citizens for a Better Environment (1993). Comments on Draft EIR for Pacific Refinery, September 24,
1993, submitted to Community Development Department, City of Hercules.
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up and the return to the community was practically nil. It was for C&H Sugar, and also PG&E
liked it, because they were going to be sold the excess power. And the state of CA liked it because
it would be what they considered a co-generation plant, and therefore generating cleaner and less
expensive energy. We didn't believe it and we proved it time and time again in front of all kinds
of people.31
After ten years of opposition by the town and a citizen group called the Crockett Power
Plant Committee, the applicants agreed to compensate Crockett residents for the effects
of the new facility. Compensation came in the form of development of a portion of the
Carquinez Strait for public access, various community improvements, and the
establishment of a foundation.32 While the plant was only sited near the town of Crockett,
the town received a share of the company's property tax payments. An agreement
between the companies, Contra Costa County, and Crockett ensured a stream of $25
million hi corporate donations and property taxes would be available to pay for
community and public works projects. The Crockett Power Plant Committee secured
the agreement after C&H received approval from the state Energy Commission for its
building permit in April, 1993. Opposition was dropped as C&H went before the state
Lands Commission in July, 1993. CBE would model the improvement package that it
submitted to Chevron in part after the C&H Sugar community fund agreement,
The Problem. The above interactions between CBE, residents, and industrial companies
marked the formative stages of CBE's efforts to negotiate terms of continued operation
with each oil refinery in the Bay Area, through a combination of good neighbor
agreements and consent orders following litigation. Chevron offered the next proving
ground for this model of citizen-driven environmental regulation. On August 11,1993, a
Draft Environmental Impact Report (DEIR) was distributed for public review.36 The
document, prepared by Environmental Science Associates for the City of Richmond,
outlined the scope of the proposed Chevron Reformulated Gasoline and FCC Plant
Upgrade Project. The project was announced at a moment of heightened scrutiny of
petrochemical plants in the Bay Area. In addition to the accidents listed in Table 1, a
defining event took place less than two weeks before the DEIR was issued. The General
Chemical Company, collocated on the Chevron property, was involved in an accident
similar to what was experienced in the Swansea-Elyria communities in North Denver: a
safety valve on a railroad car manufactured by GATX Corporation ruptured, sending a
cloud of sulruric acid over parts of Richmond and thirteen other communities.37 The
effects of the accident were felt on a far greater scale than during the incident in Colorado:
31 Interview of Member, Shoreline Environmental Alliance, May 31,2002, via telephone.
32 Burreas, C. (1993). Crockett Power Gets Panel Approval, Son Francisco Chronicle, July 30,1993, p.
A22.
33 Ibid.
34 Bancroft, A. (1993). Crockett Power Plant Approved.: Foes say they will Appeal State Energy
Commission's Decision. San Francisco Chronicle, April 27,1993, p. A16.
35 Kay, J. (1993). "Victim" to bill Chevron for Fuels Project: Richmond Requires $60 Million for City
Development. San Francisco Chronicle, December 18,1993, p. A4.
36 Environmental Science Associates (1993). Chevron Reformulated Gasoline and FCC Plant Upgrade
Project, Draft Environmental Impact Report. Prepared for City of Richmond, August, 1993.
37Kisliuk,B.(1993). Toxic Cloud Looks Like a Rainmaker. The Recorder, July 28,1993, p. l;San
Francisco Chronicle (1993). Richmond Chemical Spill. San Francisco Chronicle, July 27,1993, p. AS.
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the plume extend fifteen miles, sending more than 24,000 to hospitals and clinics.38 After
the accident, a study conducted by Rosemarie Bowler, a professor at San Francisco State
University, compared Richmond residents with a control group from East Oakland.
Nearly 90 percent of those in the Richmond sample exhibited symptoms of either
respiratory or skin-related diseases along with numerous emotional problems. Forty-five
percent of the Richmond residents also suffered from post-traumatic stress disorder.39
The accident led to the formation of the Toxic Cloud Task Force, composed of victims of
the release. It raised numerous questions about the adequacy of the region's early
warning systems and accident prevention plans. And it encouraged numerous lawsuits by
victims and environmental groups.40
As AQMD and other agencies* fines against the Chevron refinery and General Chemical
peaked, and environmental groups such as CBE honed their skills at extracting
concessions from area industries, Richmond began to experience a renaissance of activity
that heightened tensions between heavy industry, commercial activities, and residential
communities.41 Traffic congestion in Marin County increased the attractiveness of the
city as a bedroom community. The opening of the 1-580 connected the 1-80, approaching
the city from Sacramento, with the Richmond-San Rafael Bridge. The planned
Richmond Parkway (Highway 93) offered improved access to North Richmond. High
profile companies such as Pixar and United Parcel Service began to locate facilities in
Richmond. The city sought to recapture its potential for becoming a vibrant
commercial and residential center. Yet its major landowner, Chevron, continued to
dominate the landscape. And the city's geography, including vacant lots, boarded up
storefronts, numerous rail crossings, and heavy truck traffic, belied attempts at
revitalization.
In a County known for having one of the nation's highest mortality rates for various
forms of cancer,43 any proposed facility expansion would likely raise the concerns of
multiple constituencies. Chevron's project attracted particularly acute opposition, given
the company's record, high-profile events, forced agency responses^ and a growing
confidence among environmental groups that had worked closely with several of
Chevron's competitors. Early good neighbor agreements with Rhone Poulenc, Shell, and
C&H Sugar began to accumulate a sense of what should constitute "standard industry
38 Rosen, R.( 1993). Toxic Racism: Disaster in the Works: The Fight Moves from Saving Wilderness to
Saving Low-Income, Minority Communities. Los Angeles Times, September 5,1993, p. M5.
39 Hallissy, E. (1993). New Study Details Injuries from Spill: Richmond Residents Suffered Stress,
Physical Ailments. San Francisco Chronicle, December 4,1993, p. A21.
40 Kay, J. (1996). Richmond Plant Safety Pact OK'd: General Chemical, Environmentalists Sign
Agreement on Safeguards at a New Sulfuric Acid Factory. San Francisco Examiner, February 7, 1996, p.
A5.
41 Diringer, E. (1992). Big Industry Under Fire in East Bay: Contra Costa Homeowners Live hi Fear of
Toxic Disaster. San Francisco Chronicle, July 6, 1992, p. Al.
42 Hall, C.T. (1990). Sun Starting to Shine on Richmond. More Firms Calling East Bay City Home. San
Francisco Chronicle, March 10,1990, p. Bl.
43 Austin, F., Nelson, V., Swain, B., Johnson, L., Lum, S. and Flessel, P. (1984). Epidemiological study of
the incidence of cancer as related to industrial emissions in Contra Costa County, California. United States
Environmental Protection Agency Project Summary, EPA-600/S1 -84-008. Cincinnati: Center for
Environmental Research, July, 1984.
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practices" for dealing with the concerns of fenceline communities. These practices were
evoked almost immediately when the Chevron RFP, one of the largest capital projects in
the history of California,44 was proposed.
From the title of Chevron's DEIR, it should be clear that the project encompassed more
than a response to new state and federal clean fuels regulations. Indeed, Chevron had
been discussing plans for a major plant modernization program as early as 1989.45 The
project, slated to cost over $1 billion, was vaunted as an effort to improve efficiency, cut
costs, and widen profit margins.46 Chevron even took a special charge against its
earnings in the fourth quarter of 1989 for future work at the Richmond refinery.47
Estimated costs of the project ballooned to $1.3 billion by March 1990, as Chevron was
cutting over 800 jobs in the United States alone.48 The city of Richmond was told that
the project would generate 3,500 construction jobs and increase Chevron's property tax
bill from $14 million to $32 million.49 One year later, however, Chevron begun to scale
back the scope of plant modernization, citing industry uncertainty caused by clean fuels
and anticipated pollution regulations.50 The DEIR submitted for Chevron's RFP included
one of the smaller projects mat the company had indicated it would pursue to secure
some of the improved yields anticipated through the original modernization concept.51
An upgrade to the refinery's fluid catalytic cracking (FCC) unit52 was proposed along
with improvements required to conform with CAA and CARS regulations, in an effort to
"improve the reliability and safety as well as to increase the efficiency of the FCC
Plant."53 The FCC Plant upgrade was not required to produce reformulated gasoline.
Thus, the first concern of local and regional environmental groups centered on the
project's scope, The project contained elements unrelated to the federally-mandated RFP,
which were validated in the DEIR by reference to the benefits of the RFP: the use of
reformulated gasoline would decrease emissions of carbon monoxide, hydrocarbons,
nitrogen oxide, and sulfur oxide within the County.54 It was further argued that County-
wide reductions of these chemicals, which are the precursor emissions to paniculate
matter (PM10), would offset an increase in refinery emissions of PM10 caused by project
44 Supra note 21.
45 Ibid.
46 Lee, P. (1989). Pumping Life into Chevron. Los Angeles Times, December 4,1989, p. Dl.
47Pelline, J. (1990). Chevron Loses $883 Million: Huge Write-Down is Taken. San Francisco Chronicle,
January 25,1990, p. Cl.
41 Pelline, J. (1990). Chevron Modernization Outlay Put at $13 Billion. San Francisco Chronicle, March 9,
1990, p. Cl; Pelline, J. (1990). Chevron to Cut Jobs, Sell More Properties, San Francisco Chronicle,
February 21,1990, p. Cl.
49 lbid\ Pelline, J. (1990). Chevron Refinery Overhaul to Create up to 3,500 jobs. San Francisco Chronicle,
June 9,1990, p. Bl.
50 Pelline, J. (1991). Chevron Cuts Back Big East Bay Project. San Francisco Chronicle, March 8,1991, p.
Cl.
31 Ibid.
32 Catalytic cracking uses heat, pressure, and a catalyst to break larger hydrocarbon molecules into smaller,
lighter molecules. It is able to produce more gasoline at a higher octane and with less heavy fuel oils and
light gases.
33 Si^pra note 36, p. I.I.
54 Supra note 36, p. 1.16.
10
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upgrades. TTie extent of project impacts went far beyond emissions, as illustrated in
Table 2.
TableXPotentiallmpactsoftheChe™^^^
i ,
i!M?re*sed mdastrlal development; intensified bad i^e
-t. , A . . —
,..
Bmntavment ai
Sffll si; S = significant; PS - potentially sigmficant; B = benefit
The noted encouraged the participation of a broad cross-section of Richmond residents,
well as oral testimony at a hearing held on September 15,1993 J^^^^
these comments, we can compare the proposals and ultimate agreement
Chevron and several organizations to the broader concerns offce
Upgrade Proj
11
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neighborhood groups. Table 5 lists the concerns of individuals, expressed in writing or at
an Environmental Assessment Panel meeting. These tables exclude the concerns of three
orgaruzations that would later negotiate the final terms of project approval with Chevron:
The West County Toxics Coalition, People Do!, and Citizens for a Better Environment
Agencies.
Bay Area Air Quality Management District
, NOx emissions calculated at 8247
Bast Bay Municipal Utility District
Contra Costa County Community
Water Conservation District
12
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Table 4. Primary Concerns Expressed During EIR Process by Organizations.
Richmond Annex Neighborhood Council
• Needs corrective mitigation for use of Richmond Annex segment of
Cflrison Boulevard for project-related irwk, tenksf? and other heavy
vehicles,
• Traffic impacts on Richmond stttte Greets warrant compile
Point Richmond Neighborhood Council
inery
contribution to offset effects on neighbor
• Cunmlative effects of *ir iaxies in ^ie batrafor front KJje&taond lo
* "Sacrificial pocket" around the refinery cannot be ignored because of
Project's "dttstance" &om residsstiai areas j^wres Sdlnt Saa^Pabb
?otet JUchiBQiKl ne%hbois afteady-extFenMly alfe^edfey aoise
Chevron should relocate the city and County telecommunications
installations onto its property as part of mitigations
will see increased demand
• Hazardous waste lowspoit feyrail along1*580 through Swithwesi
Richmond Annex increases potential spi 1 Is add evacuation needs
* Recent General Chemical incideut suggests that certain presumptions
lo wind direction, chemical concentrations, and effects of an incident
* Project will result in new sources of light and glare
13
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Table 5. Primary Concerns Expressed During EIR Process by Hearing Attendants and
Individuals.
William Collins, Environmental Association
Stcve«:FricdmanP Environmental
« ? >"" ' •-'•»^'\ _,
Richard Katt, Point Richmond Neighborhood
Robert Carlson, Toxic Cloud Task Force
for energy; solar panels could be usod for at least the first
100 degrees
Kwasi Harris, Richmond
* Opposed to the project; local impacts for regional
benefits; lower life exi
due to heavy industry
•Q^^^ r r~~*-< V &
" W'i^, ,$•>*? ^^?-
Sharon Sims, Richmond
* Concerned with Increased long-term risk to the
community; ne«d a community inspector, property
values will suffer
Dennis Spaniel Council of Industries
Jeffrey Dodge, Oil, Chemical, and Atomic Workers
Sara BetoS, Point Richmond Neighborhood Council
14
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While a broad array of concerns encouraged individuals, representatives of neighborhood
councils, and citizen groups to question various aspects of the project, systematic
opposition to the RFP was mobilized by the coalition of three environmental
organizations mentioned above. The West County Toxics Coalition is a local, member-
driven environmental justice organization established in 1980 over concerns stemming
from the Chevron refinery and other industrial land uses.56 Members hail from the City
of Richmond, while the organization serves Richmond and the adjacent cities of San
Pablo and El Cerrito. Henry Clark, himself born and raised hi North Richmond, formed
the organization as a complement to the predominantly social service groups operating in
the neighborhood. WCTC was founded as an environmental organization, specifically
focused on the unique concerns of environmental justice communities. Having heard
about the permit process, Clark contacted his allies, CBE and People Do! People Do!
was composed of residents of Point Richmond, a white, middle-class neighborhood that
constituted one of the four most proximate communities to the Chevron refinery. People
Do! described itself as a "community coalition dedicated to working with Chevron to
achieve an equitable share of public improvements and adverse impact mitigations for the
continued operation and upgrading of the Chevron Refinery."57 Its president, Tom Butt,
was the first to accuse Chevron of "piecemealing" its modernization efforts - seeking
approval of small segments of the originally intended project - in order to avoid an
evaluation of the cumulative impact of plant changes. The two groups joined CBE in
offering extensive commentary on the DEIR and working with various neighborhood
councils to incorporate their interests into a "Community/Environment Improvement
Package," proposed to Chevron and then the Richmond Planning Commission. CBE's
lead community organizer for the project describes the organizing process:
The process started with making all of the neighborhood councils and existing groups that we
thought might be interested aware of this project coming through and die opportunity for a good
neighbor agreement. There were a bunch of meetings with those groups to get them involved
including the Chevron Community Advisory Panel, and then those groups participated in these
meetings with Chevron to understand the project better and give them our ideas of what they
needed to do to make the project acceptable. These are meetings between the groups and the
company. There were public meetings as the outreach started, to the neighborhood councils,
saying this is happening, mis is what Chevron is proposing, these groups are joining together to
negotiate with Chevron to try and improve the project, we want to be involved, here's how you
can be involved, and again you tend to get a self-selected group out of that Who represents their
neighborhood council, their CAP, their organization, mat becomes part of essentially like a
steering committee and you proceed with the company. Generally [the companies] will make
some changes. I think in Chevron's case there were little or none mat they agreed to."
Organization representatives differed slightly in their depiction of the extent of
community-corporate interaction before the hearing process began. Yet it is clear that
discussions with Chevron did not yield concessions. CBE, WCTC, and People Do! were
left to meet with members of the Richmond Planning Commission, charged with
56 Interview of Member, West County Toxics Coalition, June 5,2002, in Richmond.
57 People Do! (1993). Response to the Draft Environmental Impact Report for the Chevron Reformulated
Gasoline and FCC Upgrade Project. September 23,1993.
58 Ibid, p. 7.
99 Interview of former Organizer, Communities for a Better Environment (formerly Citizens for a Better
Environment), June 4,2002, in Point Richmond.
15
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approving a conditional use permit for the project. A letter from these organizations to
the General Manager of the refinery on November 29,1993 expresses their frustration
with the extent to which their concerns had been considered.60 The groups cancelled a
scheduled meeting with Chevron and requested a written response to their demands,
which focused on community development, accident prevention, air and water pollution
prevention, and improved environmental assessment and monitoring. No further
communications occurred.
Before we consider the permitting process which led to an agreement between
environmental groups and Chevron, let us contrast the concerns of these organizations
with those expressed during the DEIR public comment period. This will give us a sense
of the extent to which broader interests of Richmond stakeholders were incorporated into
the Improvement Package, Commission and Council decisions, and a Memorandum of
Understanding signed between Chevron, CBE, WCTC, and People Do! at the final stage
of the permitting process. Agencies that commented on the project expressed relatively
isolated concerns linked to organizational mandates and limited jurisdictions. These
included an array of traffic and transit issues as well as land use considerations. Only the
Air Quality Management District and West Contra Costa County School District raised
specific concerns regarding the project's potential to increase emissions, with the former
concentrating on the DElR's failure to adequately consider best available control
technologies (BACT). By contrast, organizations, including neighborhood councils and
regional environmental groups, broadened the scope of environmental impacts that they
considered important and inadequately addressed. Traffic and other nuisance concerns
predominated in some councils, while others joined environmental groups in
characterizing the project's disproportionate impacts on a "sacrificial pocket" of residents
near the site. The inadequacies of public services, including police, fire, and emergency
response capabilities, were also priorities of commenting organizations. Individuals who
commented on the DEIR offered a better cross-section of the city that would be
mobilized by both sides for subsequent commission and council hearings. Here, we get
the first sense of outright opposition to the project, in addition to accounts of residents'
experience with the facility (e.g., "overproduction at night")- A number of individuals
represented organizations with an interest in the construction and permanent jobs
promised by the project. Finally, several North Richmond social service organizations
spoke in favor of the project. The Neighborhood House, for instance, characterized the
project as "an opportunity to develop a partnership" with the company.62
By contrast, the three major environmental groups offered lengthy, extremely detailed
responses to the DEIR, outlining their rationale for specific mitigations to refinery
equipment and processes (CBE/WCTC) and for general and site planning considerations
to improve public access, scenic routes, conservation, transportation, and recreation
60 Leedie, M., Clark, H., Eels, S., & Butt, T. (1993). Letter to Michael Hannan, General Manager, Chevron
USA, Inc. from Michael Leedie, West County Toxics Coalition and CBE, Henry Clark, West County
Toxics Coalition, Sarah Eels, Chevron CAP, and Tom Butt, People Do!, November 29,1993.
61 Eeles, S. (1993). Comments - Chevron Reformulated Gasoline and FCC Plant Upgrade Project.
Submitted to Jim Farah, Director, Planning Department, City of Richmond, September 27,1993.
K Supra note 55.
16
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opportunities (People Do!). CBE/WCTC provided an account of "significant impacts
omitted from or underestimated in the current DEIR."63 These included:
The assumption that crude oil high in selenium and sulfur will not be used in the future, when no
such commitment has been made
An improper characterization of the site's accident history, rendering the DEIR's depiction of the
project's "environmental setting" inaccurate
An underestimation of existing health risks posed by the presence of other hazardous facilities in
the area, which constitute a "toxic soup" in the city
A portrayal of baseline emissions at the existing facility that resulted in an underestimation of the
impacts of the proposed project
An inaccurate assumption that a CO boiler will be in place to reduce emissions when Chevron
planned to remove the boiler from the site
Failure to propose mitigation measures that would reduce an expected increase in VOC and NOx
emissions, each by over 150 tons per year
Failure to consider the impacts of toxic air emissions by considering the project's impacts together
with other sources of emissions in the area
Failure to account for emissions resulting from the refinery's increased production levels
Failure to consider the true scope of impacts on water quality in the Bay, particularly through
selenium discharges
An underestimation of the risk of accidents
Failure to consider the effects of the project on urban deterioration in the city (decreased property
values, residential flight, and decreased quality of life)
Lack of an adequate mitigation monitoring program to ensure that mitigations are properly
implemented
In response to these deficiencies in the DEIR, CBE/WCTC proposed a series of
mitigation measures for the proposed project:
• The use of bellows valves in bom the proposed project and the existing refinery would mitigate
VOC emissions increases from the new project. Low-leakage bellows valves, hermetically-sealed
control valves, and relief valves vented to a gas recovery system are all feasible technologies in
use at area facilities such as Shell Oil in Martinez. Bellows valves are particularly useful in
reducing fugitive emissions
• Control technology such as those listed above will reduce or prevent flaring, and the visual, noise,
and emission impacts of the practice
• Replacement of perchloroethylene with hydrogen chloride to avoid the risk of phosgene (nerve gas)
formation in the event of a fire
• Revised methodology for risk of upset calculations is needed
• Creation of a community development fund, a job training program, a guarantee for construction
jobs, and an environmental fund to improve Richmond's environment would mitigate the urban
degradation experienced due to the proposed project
• A mitigation monitoring program mat includes a community technical advisor and fenceline
monitoring (remote sensors using infrared or laser technologies to measure refinery emissions
including VOC's)
• WCTC added a separate list of mitigations, including use of best available control technology,
long-term health assessment, increased recycling and reuse of materials, a community alert
63 Citizens for a Better Environment (1993). Chevron Reformulated Gasoline and FCC Plant Upgrade
Project - Comments on Draft EIR. Submitted to James Farrah, Planning Director, Richmond Planning
Department, September 27,1993; See also West County Toxics Coalition (1993). Chevron Reformulated
Fuels and FCC Plant Upgrade Project Draft EIR Written Public Comments. Submitted to Jim Farrah,
Planning Director, City of Richmond, September 24,1993.
17
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network including sirens and public education, a community development fund, and upgraded
evacuation plans.
People Do! focused on the power of the city of Richmond to impose conditions on the
project beyond what would be allowed under the California Environmental Policy Act.
The first such power was the ability to issue a conditional use permit (CUP). The
Chevron refinery required a CUP because its use was considered one of the uses "which
may be obnoxious or offensive by reason of emission of odor, dust, smoke, gas, noise,
vibration, and the like."64 The Planning Commission has the power to
Impose such conditions, including but not limited to, a time limitation on the effectiveness of the
use permit, as it deems necessary to protect the best interests of the neighborhood property or
neighborhood and to carry out the purposes of the Zoning Ordinance and the Richmond General
Plan/"
65
The interests of Point Richmond, the Iron Triangle, and North Richmond are evoked as
those most directly tied to the conditions that People Do! asked the city to levy on the
proposed project. In addition, People Do! suggested that the project would have to
undergo a Site Development Review, the purpose of which is to
Promote orderly, attractive, and harmonious development, recognize environmental limitations on
development, stabilize land values and investments, and promote the general welfare by
preventing establishment of uses or erection of structures having qualities which would not meet
the specific intent clauses or performance standards of this Chapter or which are not properly
related to their sites, surroundings, traffic circulation, or their environmental setting.
People Do! proceeded to link general categories of the Richmond General Plan and
Shoreline Conservation and Development Strategy with proposals for improved:
Public Access: Focused on developing the recreation potential of Point Molate beach, improving
a series of shoreline parks and scenic routes, requiring public access to regional trails and the Bay.
Public Use Facilities: Focused on the need to acquire, develop, and manage trails, fishing sites,
beaches, parks, viewpoints, and public recreation areas.
Scenic Routes, Appearances, and Views: Focused on the Scenic Routes element of the General
Plan and its policies toward maintaining rights-of-way and coordinating improvements of scenic
routes, with specific proposals for the coastline near the refinery.
Shoreline and Wildlife Conservation: Focused on how the enforcement of existing ordinances and
conditions of approval for refinery expansion could encourage wildlife preservation, weed
abatement, landscaping and vegetation to improve the appearance of the area, and hillside
conservation strategies to mitigate the appearance of hillside tank farms.
Transportation: Focused on recreational corridors, bikeways, trails, and the encouragement of
alternative ways for the public to reach the shoreline.
HRMC15.04.140.A.39h.
63RMC15.04.190.C.5.
66RMC15.04.20S.A.
18
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Recreation: Focused on the above access issues as welt as the establishment of shoreline sites or
piers for public fishing.
In general, People Do!*s proposals were aimed at improving appearance, access, and use
issues for the peninsula on which the refinery was located and surrounding areas. A
pictorial account of Chevron's property and its effects on its vicinity depicts "no
trespassing" signage, piping in need of concealment, enfencement problems (particularly
as they related to shoreline access), overhead power lines, and other nuisances in need of
abatement.
The interests expressed by CBE/WCTC and People Do!, including reduced emissions and
improved appearance and access, factored heavily into two versions of a
Cornmumty/Environment Improvement Package that were used to frame discussions with
Chevron (Fall, 1993), presented to Richmond's Environmental Assessment Panel
(December 8,1993), and then rewritten and submitted to the Planning Commission
(proposal 2).67 Here, we find the first evidence of a push to commit Chevron to a
community development fund, modeled after Crockett's settlement with C&H Sugar.
The idea of a fund also came from California statutes, which permitted cities and counties
to levy up to a 10% tax on gross receipts of hazardous waste facilities.68 Below is a
comparison of the proposals, which received the support of the Toxic Cloud Task Force,
the Richmond Neighborhood Coordinating Council, a majority of the Chevron
Community Advisory Panel, the Point Richmond Neighborhood Council, and the May
Valley Neighborhood Council, in addition to the above three organizations.
67 West County Toxics Coalition, Citizens for a Better Environment, & People Do! (1993). Media Release:
Richmond Neighborhood Coordinating Council Unanimously Endorses Grassroots Effort to Clean-up
Chevron Fuels Project. December 7,1993 (proposal 1); Citizens for a Better Environment (1993).
Additional Conditions of Approval, Final Draft, December 15,1993 (proposal 2).
68 Kirk, M.A. & Wade, C.L. (1997). A taxing problem for environmental justice: The tax money from
Hazardous Waste Facilities. Stanford Environmental Law Journal, 16: 201-255. hi California, general
law cities or counties are able to levy up to a 10% tax on the gross receipts of hazardous waste facilities.
The first tax, effective since 1981, allows a city or County to impose a license tax of not more than 10% on
a Class I hazardous waste incinerator. The second, effective since 1986, authorizes cities and counties to
levy a tax on offsite, multiuser hazardous waste facilities.
19
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Table 6. Comparison of Proposed Conditions of Approval Submitted by Coalition.
, -
Community Independently managed community development Design and fend cleanup program for open
Development foundation: clinic to^erve t*siden» of North space, shoreline, and roadways surrounding
Richmond and to conduct toqpM health refinery which w»l conform to applicable
assessment
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In fact, no fewer than six proposals and agreements were exchanged between Chevron,
the Commission, the Fire Department, and the coalition on the day of the CUP hearing.
The refinery reached agreement with the Fire Department to address training and
equipment that the project would require.70 Chevron provided legal arguments to the city
as to Richmond's compliance with CEQA, which had been called into question by
CBE.71 An Alliance Agreement was reached between Chevron and the city to give
priority for materials purchasing for local and minority owned businesses. The
company responded to allegations of increased hydrocarbon emissions by citing previous
emissions reductions banked with the AQMD and proposing to add a condition to the
CUP offering additional voluntary reductions.73 Most importantly, Chevron responded to
proposal 1, which the coalition had presented at the Environmental Assessment Panel.
A look at Chevron's response to the coalition's demands as well as the city planning
staffs report on the project and its proposed mitigations suggests that the company made
numerous concessions (or reaffirmations of steps that were already underway) before the
hearing. Here are a few of those concessions:
Chevron will agree, as outlined in the City staff's proposed additional condition H.1 for the CUP,
to keep abreast of progress made in the remote sensor fenceline pilot project which will be
undertaken at the Shell Martinez Refinery. If something successful is developed, we will adapt it
to the Richmond Refinery.
Chevron is a member of the Contra Costa County Community Notification Committee. The
committee has recommended, and the County Board of Supervisors has approved, a phased
program for installation of a County-wide emergency notification system which includes
installation of sirens. Chevron will fund its fair share of the cost of implementing the plan for
community notification.
[Planning] staff has recommended mat we be required to landscape several different areas within
the Refinery and along the refinery perimeter. The perimeter landscaping will serve to screen
views of refinery equipment from public view... We agree to do this landscaping as recommended
by City Staff as conditions for CUP approval.
70 Chevron Richmond Refinery Plant Protection (1993). Fax to John Walker, Richmond Fire Department,
Re: Agreement, December 16, 1993.
71 Buskirk, R.E. (1993). Letter to Malcolm Hunter, Esq., from R.E. Buskirk, Re: Chevron Richmond
Refinery Reformulated Gasoline and PCC Plant Upgrade Project, December 16,1993.
72 Williams, P.S. (1993). Letter to Planning Commission, City of Richmond from P.S. Williams, Manager,
Environment and Safety, Chevron, December 16,1993.
73 Hannan, M.D. (1993). Letter to Jim Farah, Planning Director, City of Richmond, from M.D. Hannan,
General Manager, Chevron U.S.A. Products Company Richmond Refinery, December 16,1993.
Chevron's proposed efforts to reduce emissions included a commitment to take "one or more of the
following actions": a. Limit FCC Unit Combustion hydrocarbon emissions to their current level by
designing and operating combustion equipment in the modernized FCC Unit to provide operating
conditions such as temperature and residence time to maximize thermal destruction of hydrocarbons; b.
Permanently shut down and surrender the operating permits for any refinery facilities which were included
in the EIR1992 Inventory and for which the resulting emission reductions have not previously been banked
with AQMD; c. Retrofit tanks built prior to 1979 with low emission fittings; and d. Reduce fugitive
hydrocarbon emissions from certain tanks, valves, pumps, and/or compressors to a level below that
required by current regulations. A combination of the above measures, it was claimed, would reduce the
project's net hydrocarbon emission increase from 830 Ibs/day to zero or less prior to project startup.
21
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There has been much debate about the City's authority to require mitigations from within the
existing refinery. The debate has principally focused on demands to mitigate the 150 tons per year
(or 830 Ibs/day as stated in the EIR) hydrocarbon emissions increase due to the project. To
eliminate community concern on this matter, even though we agree that mitigations outside the
project are not within the City's jurisdiction for this project-permit, Chevron has shown good faith
to the City and community and voluntarily agreed to fully mitigate the 1 SO tons per year
hydrocarbon emissions increase before project start-up.7
The RFC project itself will be mitigated to the maximum extent feasible by application of best
available control technology by the Bay Area Air Quality Management District and other
measures (such as bellows valves) imposed on the project by the city. Staff Report, Attach. A, pp.
3-4."
Some of these concessions were presented to planning staff in the form of language for
changes to the Planning Department's proposed Conditions of CUP Approval and
Mitigation Monitoring Program.76 Taken collectively, Chevron's concessions and the
wide-ranging mitigation measures proposed by planning staff were responsive to many of
the demands made by citizens and organizations throughout the EIR process. Examples
include landscaping the tank farm area and Castro Street, improvements to Point San
Pablo, contributions to the city's Urban Forest Management Program, experimentation
with fenceline monitoring, job creation, installation of a community alert system, use of
best available control technology, traffic reductions, prohibited use of Carlson Boulevard
by construction traffic, dust abatement for fugitive dust emissions, truck coverage,
minimized exhaust emissions, and the reduction of hydrocarbon emissions through a
variety of measures.77 Still, the planning staff rejected important elements of the
coalition's demands (found in proposal 1), on the basis of the need for a "nexus" between
conditions of approval and the project's impacts. This argument was based on the case of
Nollan v. California Coastal Commission, which established the following analysis for
determining the reasonableness of a permit condition:
1. Is the purpose of the regulatory/conditioning action a "legitimate government purpose?" and
2. Do the means used to achieve the objective "substantially advance" the intended purpose?
a. Does the type of condition imposed address the same type of impact caused by the
development?
b. Is die condition reasonable and fair relative to the burden created by the
development?78
Regardless of whether the project contributed a disproportionate burden to the residents
of North Richmond, the city argued that it was not allowed to impose conditions that
would shift public benefits to those who could only "speculatively" benefit from them.
Thus, conditions such as the community development fund, improvements to areas not
impacted by project elements, or relocation of electronic facilities unrelated to the project
74 Supra note 72.
73%v
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from Nicholl Knob were not offered by staff. In addition, it was not clear to staff how a
community inspector could be chosen and the Department assured of their qualifications
vis-a-vis the areas of expertise required to deal with a complex refinery. That condition
was also excluded from the planning staffs recommendations.
By the time the Planning Commission hearing was held on December 16,1993, it was
clear that the planning staff had addressed a broad range of concerns for the RFP. It was
also apparent that the most vocal members of the opposition, including CBE, WCTC, and
People Do!, had succeeded in encouraging Chevron to make several important
concessions, some of which they were in the process of making prior to the issuance of
the coalition's first proposal. The hearing marked another opportunity for give and take
between the applicant and the permitting body, which occurred after 19 people spoke in
favor of the project and 20 spoke in favor with additional conditions. Proponents
included local businesses with good relationships with Chevron, social service
organizations reliant on the company for donations, equipment, and expertise, and union
representatives satisfied with the mitigations or interested in jobs that the project would
create. Those in favor with additional conditions, led by Henry Clark of WCTC,
reiterated the ten point program (proposal 2) that had been sent to the Commission that
day. They also placed the proposed community development fund in the broader context
of Chevron's County-wide annual giving. More importantly, they evoked linkages
between local increases in air pollution and the conditions of urban blight. These
connections, in addition to case law established after Notion, were used to argue for a
nexus between the community development fund and the proposed project. It was also
suggested that the fund would help the city avoid the appearance of adopting only
mitigations that promised to add to the general fund (such as tree planting and other
public works efforts). The second group of speakers had no knowledge of the new
measures proposed by Chevron to reduce hydrocarbon emissions or attempt fenceline
monitoring, issued that day as well.
A final exchange between planning commissioners and the applicant was used to refine
the mitigations proposed in the planning staff report.79 Commissioner Edwards asked the
applicant if Chevron was willing to meet with opponents again. The refinery's
environment and safety manager responded by stating that numerous meetings had led to
the concessions under consideration. The commissioners proceeded to question the
manager on the coalition's ten point program and the extent to which the refinery "could
live with" each point. The primary point of contention concerned whether Chevron could
meet its proposed emissions reductions, which Chevron staff claimed was a task for the
city's mitigation verification plan as well as AQMD monitoring staff. Pete Williams,
representing Chevron, explained the efforts underway for topics addressed by most of the
ten points, evidencing particular opposition to the community development fund and
coalition efforts to hold the refinery to "no net increases" in emissions, regardless of
crude oil type used at the facility.
79 City of Richmond (1993). Conditional Use Permit Application CU 93-40 CPC Meeting of December 16,
1993 Proceedings. Prepared by Deborah Neville, CSR No. 9703.
23
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It was clear from commissioner responses that several disagreed with the planning staffs
interpretation of the nexus between some of the coalition's proposals and the project.
One commissioner argued:
Much of the community fund decision is obviously an idea that is very dear to the citizens1 hearts.
And I think that to say that a project of this magnitude does not affect the community around it, I
can't agree with that. I can understand the legal argument, but I can't agree with it. I can also
understand and agree with the legal argument which in fact calls for a direct relationship between
the two. I could suggest to my other commissioners on the board that perhaps 9 percent is an
onerous figure, that it might be reduced to five percent. That would be 30 million dollars at a
million dollars a year. Although I know that Chevron would - may not want to involve itself in
that kind of funding, I would suggest to Chevron that perhaps it would be in their best interest to
consider it for the community who has been with you and by you and supported you for the past
80 years and will do so for the next 30 to SO years. That it might be something that you might
• ftfl
want to acquiesce.
A motion was made several minutes after public testimony ended. It called for approval
of the staff report along with additional conditions, which constituted all of the coalition's
demands (proposal 2) with the exception of site relocation of the telecommunications
facility from Nicholl Knob. Commissioners were in agreement that it would be most
difficult to establish a nexus argument for that provision. A provision relating to job
training for Richmond residents taking jobs at the facility was added. While some of the
commissioners believed that the community development fund and the proposed study of
clean alternative energy sources also failed the nexus test, the motion passed by a vote of
6-3 and the CUP was approved.81
The refinery appealed the Commission's decision to the City Council. The appeal called
for modification of the CUP by deleting "unlawful, arbitrary, and capricious" conditions
added with "no substantial evidence" that they would mitigate elements of the RFP
• 82
project :
Independent expert chosen by Chevron's community advisory panel
CAP consents to the selection of an independent consulting firm that will prepare periodic reports
of Chevron's compliance with the CUP
$50,000 per year contribution to city's Urban Forest Program
Use of a different baseline to compute air emissions
Use of "all available means throughout the refinery" to achieve no net increase in emissions
Elimination of routine flaring and utilization of the quietest flare system available to reduce noise
from flaring
Installation of fenceline remote laser or infrared monitoring system for detection of chemical
releases (Chevron argued mat mis system was not yet in existence for application at the refinery
and reiterated its intentions to pursue a system "adequately tied to the developing nature of the
technology")
Achievement of "no net increase" in air or waterbome emissions should different types of crude
be used at the refinery
80 Ibid. p. 130.
81 Kaufman, N. (1993). Memorandum to Mayor Corbin and Members of the City Council, Re: Conditional
Use Permit for the Chevron Refinery Reformulated Gasoline and FCC Plant Upgrade Project, December 23,
1993.
82 Chevron U.S.A. Products Co. (1993). Conditional Use Permit Appeal, December 27,1993.
24
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• All relief valves in the refinery vent to containment
• Development of a fund for cleanup of open space, shoreline, and roadways surrounding the
refinery complex
• Annual contribution based on 9% of annual construction costs to a community foundation
independently managed by residents for general educational, health, economic and public safety
programs
• Refinery-wide study of clean alternative energy sources and a study of technical and economic
feasibility of future voluntary emission reductions
Intense lobbying of the City Council ensued. The Chevron community advisory panel,
which had endorsed proposal 1 by majority vote, agreed to unanimously back proposal 2
and urged Chevron and the Council to "recognize the full impact of the project on
business, schools, housing, property values, health, and overall quality of life."83
Subsequent correspondence suggests that it was at this point that the Mitigation Task
Force began to operate independent of the broad array of citizen and environmental
groups involved at various points of the permitting process. Below is a summary of the
activities of major stakeholders prior to the City Council meeting:
Mitigation Task Force (People Do!, WCTC, CBE): Reaffirmed the coalition's backing of the
actions of the Planning Commission; requested a continuance of the public hearing for 45 days to
allow additional study and review of Planning Commission's approval of additional conditions;
requested mat planning staff carry out additional research to support the additional conditions by
the Commission; asked the City Council to adopt a resolution encouraging Chevron and the
coalition to "enter into negotiations to find a mutually acceptable resolution which will avoid a
confrontational vote by the City Council and the virtually certain prolonged litigation that would
follow such a vote; prepared a detailed response to the Chevron appeal arguing for a rational nexus
between the CUP conditions and the RFP; mobilized residents and neighborhood council
representatives in order to lobby City Council members;85 promoted a common understanding of
the links between the Commission-accepted community foundation and conditions in North
Richmond;86 and answered Chevron's legal arguments against the Commission's decision in
letters to the City Attorney.87
83 Chevron Community Advisory Panel (1993). Letter to Mike Hannan, General Manager, Richmond
Refinery from The Community Advisory Panel, December 30,1993.
84 Butt, T. (1994). Letter from Mitigation Task Force to Mayor Corbin and Members of the City Council,
January 19,1994; Butt, T. (1994). Response to Chevron Appeal of Planning Commission CUP 93-40,
January 18, 1994.
85 West County Toxics Coalition (1994). $60 Million Dollars for Improving Education, Jobs, and Health in
Richmond. Flier published by the West County Toxics Coalition, January 10,1994.
86 Mitigation Task Force (1994). Chevron Funded Richmond Community Foundation (no date). Argues
the area downwind from the refinery is characterized by "schools with the lowest test scores in the West
Contra Costa Unified School District and some of the lowest test scores in California; families with some
of the lowest income levels in Contra Costa County, particularly among ethnic minorities; highest crime
rate in the City of Richmond; highest level of health problems in the City of Richmond, including AIDS;
and some of the lowest property values in the Bay Area" (p. 1). It was argued mat "the concentration of
myriad social, economic, and health problems in north and west Richmond would not exist were it not for
the Chevron Refinery and associated industries" (Ibid, emphasis in original).
87 Drury, R.T. (1994). Letter to Malcolm Hunter, Esq., City Attorney from R.T. Drury, Staff Attorney,
Citizens for a Better Environment, Re: Chevron Richmond Refinery Reformulated Gasoline and FCC
Plant Upgrade Project Appeal (CUP 93-40), January 21,1994 (Counters arguments against the "rational
nexus" between the approved mitigations and the RFP project: mitigations for harms not specified as
significant in an EIR can be included as long as they bear a rational relationship to a harm posed; state and
federal law stands as no obstacle to creation of a community fund; city's nuisance powers allow for
25
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Richmond Planning Staff: Prepared findings relating to the Planning Commission's vote to
approve the CUP, noting inconsistencies in the Commission's approval of the project with the
added conditions. The staff maintained its original recommendations. Inconsistencies were noted
between the Commission's emphasis on hiring Richmond residents and the Alliance Agreement
between the city and Chevron, requirements to use an appropriate emissions baseline without
specification of how baselines should be corrected, requirements to install a "non-proven
[fenceline monitoring] system prior to project completion" (borrowing the language of Chevron's
appeal), requiring '"no net increase" irrespective of crude oil type when the EIR stated that crude
type is "not a factor," and requiring that relief valves be vented to containment when certain
venting was viewed as illegal.88
Chevron: Advanced rational nexus (particularly for the proposed foundation), unlawful
delegation of municipal authority (e.g. the city's requirement that Chevron fund an independent
monitor of compliance with the CUP), illegal special tax (fees levied to replace revenues for
general public services are suspect as disguised taxes), and other legal arguments for overturning
the Planning Commission's conditions of approval;89 advanced commitments Chevron would
agree to make regarding on-going refinery operations and a rive point program "responding to
other concerns of the community in general";90 and mobilized residents and organizations to lobby
the City Council prior to the scheduled hearing.91
AQMD: Expressed concern about the delay that the planning process would have on Chevron's
timely compliance with CAA and CARB requirements; commented to Planning Department on
the appropriateness of the Community Inspector proposal made by the coalition; urged caution in
requiring that Chevron install remote sensing technology; explained that some flaring is necessary
to minimize pressure build-up in some refinery vessels; explained that AQMD regulations already
required "no net increase" in facility-wide emissions in connection with refinery modification,
regardless of the type of crude used; discussed comparison of the Chevron project and Shell's RFP
project in terms of scope and mitigations.93
mitigations that supplement use of broader police powers; monetary exactions are not special taxes; health,
education, and safety impacts clearly supported by the factual record).
88 Richmond City Planning Department (1994). City Council/Committee Agenda Request. Prepared by
Nancy Kaufman/Jim Farah for Committee Review on January 19-20,1994.
" Buskirk, R.E. (1994). Letter to Malcolm Hunter, Esq.. City Attorney from Ronald E. Van Buskirk, Re:
Chevron Richmond Refinery Reformulated Gasoline and FCC Plant Upgrade Project - Appeal to City
Council (CUP 93-40), January 18,1994; Buskirk, R.E. (1994). Letter to Mayor Rosemary Corbin and
Members of City Council from Ronald E. Van Buskirk, Re: Chevron Richmond Refinery Reformulated
Gasoline and FCC Plant Upgrade Project - CU 93-40 - Appeal to City Council, January 24,1994.
90 Hannan, M.D. (1994). Letter to Rosemary Corbin, Mayor, from M.D. Hannan, General Manager,
Chevron U.S.A. Products Company Richmond Refinery, January 24,1994.
91 An example of Chevron's mobilization tactics can be found in Hannan, M.D. (1994). Letter to City of
Richmond Festival By the Bay from M.D. Hannan, General Manager, Chevron U.S.A. Products Company
Richmond Refinery, January 13,1994 (urging members to contact the mayor or City Council in support of
Chevron's appeal and providing "sample letter instructions" for a letter writing campaign); See also
Chevron Corporation (1993). Press Release: Chevron Asks Richmond City Council to Reject Conditions
for Richmond Refinery Cleaner Fuels Project, December 27,1993 ("One condition alone would extract $54
million in cash payments unrelated to the project, putting Richmond at a competitive disadvantage with
other Bay Area refineries undertaking similar work").
" Feldstein, M. (1994). Letter to Jim Farah, Planning Director, City of Richmond from M. Feldstein, Air
Pollution Control Officer, Bay Area Ah- Quality Management District, January 13,1994; Feldstein, M.
(1994). Fax to James Farah, Planning Director, City of Richmond from M. Feldstein, Air Pollution Control
Officer, Bay Area Air Quality Management District, January 1,1994; Bragden, H. (1994), Memorandum
to Tom Powers, Bay Area Air Quality Management District from Harvey Bragden, Contra Costa County
Community Development Department, December 22,1993.
26
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City Manager: Presented the mayor and City Council with a summary of Chevron's resent
involvement in city-related activities, including direct impact on the economy, construction
assistance with the Richmond Parkway, employment by Chevron contractors, and the company's
philanthropic and volunteer programs.93
Lawyers' Committee for Civil Rights: Urged the City Attorney to uphold the Commission's
mitigation measures; presented findings in support of the measures.94
As the City Council hearing date approached, the deadline for compliance with federal
reformulated gasoline standards drew near (January 1,1995, less than one year away).
The deadline for gasoline sold in California to meet state standards was March 1,1996.95
Most interesting among the pre-hearing activities listed above was Chevron's proposal
for a "binding, legally enforceable agreement between the City and Chevron," to include
general commitments as well as a five point plan tailored to some of the concerns raised
during the EIR process (the last five bullets below constitute the five point program):
Manage refinery operations to minimize flaring and flare noise
Keep track of fenceline monitoring pilot program at Shell refinery and install a similar pilot
system if Shell's proves successful
Maintain emission goals should a change in crude type processed at the refinery be made in the
future
Vent all hydrocarbon relief valves to the refinery relief system as long as AQMD cost-
effectiveness requirements are met
Maintain adequate weed control and trash pick-up on all refinery properties in Richmond
Prepare a report for the City Council on energy conservation strategies for the refinery
Improve the existing community alert and notification system through installation of hardware and
infrastructure to activate the emergency notification system through the Community Awareness
Emergency Response group (Chevron contribution; $1.7 million)
Based on recommendations of the Martin Luther King Health Center Board of Directors, a fund
will be created to establish the Martin Luther King Health Center, located in Richmond as an
ongoing immediate care/health maintenance facility (Chevron contribution: $2,100,000 if certain
milestones are met)
Expand the scope of the Alliance Agreement to the entire Chevron Richmond Refinery for
application to ongoing operations
Establish a mentoring program through a joint effort between the Police Activity League and West
Contra Costa Unified School District aimed at youth, grades 4-12, focused on ensuring completion
of each student's full educational potential (Chevron contribution: $400,000)
Develop a comprehensive program aimed at improving communications between residential and
industrial citizens in Richmond96
While the above proposal was being developed, Chevron, the media, and even the
environmental groups focused the public's attention on what seemed to be a battle over
"60 million dollars," rather than a consideration of how best to advance the interests of
93 Johnson, F.T. (1994). Memorandum to Mayor Corbin and Members of City Council from Floyd Johnson,
City Manager, January 21,1994.
94 Wang, T.H. (1994). Letter to Malcolm Hunter, Esq. from Theodore Hsien Want, Staff Attorney,
Lawyers' Committee for Civil Rights of the San Francisco Bay Area, Re: Conditional Use Permit
Application, CU 93-40, for the Richmond Chevron Refinery Reformulated Gasoline and FCC Plan
Upgrade Project, January 24,1994.
935wpranote79.
96 Supra note 9Q.
27
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numerous civic groups and organizations in greater Richmond and to ensure that the true
scope of project impacts was agreed to and mitigated. The enormity of the dollar amount
at issue discouraged public debate over the project and the refinery's relationship with
residential communities and local businesses.
By that time, there were newspaper articles and the whole discussion or controversy around town
was about the 60 million dollars. The 60 million dollars became the focus. Word was that the
WCTC was trying to extort 60 million out of Chevron, so all of the safety issues were lost in the
discussion and the fund became the primary focus. Chevron appealed and we came before the
City Council in January. At that time the Council had hired a new City Manager named Floyd
Johnson. There was a lot of controversy around that because due to the political maneuverings
tiiis guy who was the president of the Richmond Fire Fighters' union, Darryl Reeves who had
been a known lobbyist in the city of Richmond and the Fire Fighters have had considerable
influence on political decisions here in the city so Darryl helped to get Floyd hired as the new
manager and one of Floyd's tasks was to prove himself on his first days on the job to overthrow
the Planning Commission's decision. So as the project came before the Council, Chevron was
also lobbying the members. When it came before the Council there were some deals on the table
and through discussions with the City Council we presented our proposals and requests and
Chevron presented theirs and the Council then discussed it and made a final determination and the
$60 million fund was scaled back to $4.5 million.97
Each side sought to garner as much support as possible for either the Commission's
decision or Chevron's proposed program (for which Chevron received over 475 letters of
support).98 Despite the coalition's efforts to the contrary, the City Council voted to
overturn the Planning Commission's decision by a vote of 8-0 with one abstention on
January 24,1994." The meeting was attended by over 2,000 individuals and had to be
moved to a nearby auditorium. Each side offered various documents for the public
record, but while Chevron focused on evidence of the utility of then1 new proposal, the
coalition offered a sprawling array of documents related to everything from health effects
from exposure to emissions to examples of previous development agreements (such as
the good neighbor agreement between Crockett and C&H Sugar). Without considering
these documents, the Council motioned to consider Chevron's proposed agreement. The
Council passed the planning staffs initial recommendations as well as the Chevron
program.101
Dispute Resolution. Interestingly, the coalition claimed victory immediately following
the Council's decision, citing similarities between some of their demands and elements of
the Chevron proposal. The groups released a comparison of their goals with concessions
that were approved by the Council.102 When viewed together, the recommendations of
planning staff and Chevron's five point plan did appear to address many of the coalition's
concerns. Still, the concessions, either encouraged through private correspondence
97 Interview of Member, West County Toxics Coalition, June 5,2002, in Richmond.
98 City of Richmond (1994). Minutes to Richmond City Council meeting, January 24,1994.
"Ibid.
100 Interview of former Planner, City of Richmond, June 5,2002, in Richmond.
101 City of Richmond (1994). CU 93-40 Conditions of Approval Per City Council Decision of January 24,
1994.
102 Citizens for a Better Environment (1994). Comparison of Conditions Requested by People Do!, CBE,
and West County Toxics Coalition and Conditions Imposed by the Richmond City Council (no date).
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between the company and planning staffer offered in order to influence the City Council,
did not go as far as to satisfy some of the interests underlying the coalition's ten point
plan (proposal 2). The coalition itself suggested that Chevron was merely "taking credit
for shutting down units and surrendering operating permits it already planned to
terminate," conditioning flaring changes to AQMD approval and fenceline monitoring to
the success or failure of the Shell pilot project, and using vague language such as
"consistent with acceptable engineering practices."103 In addition, some members of the
coalition accused Chevron of offering projects that catered to the constituencies of certain
City Council members, such as the Health Center.104 Other components of the Council
decision concerned efforts that Chevron had already begun to engage, such as
development of a community alert system. These concessions clearly represented a
marked improvement over the initial project as discussed in the EIR. However, the give
and take of proposals and concessions that occurred incrementally throughout the EIR,
Planning Commission, and City Council stages of the permitting process left much of the
final conditions of approval to the dynamics of interest group pluralism. Certain groups
were able to translate their needs into complex legal arguments or to rally public support
for carefully worded concessions. In either case, the proposals were unilaterally
developed and offered, at times in a flurry of activity before a crucial vote sifted through
the proposals with competing or no objective means of establishing relevance, learning
about project impacts of most concern to various groups and individuals, or optimizing
impact mitigation from the perspective of those most affected (communities in North
Richmond). The process highlighted both the flexibility and limits of the permitting
process as it was played out.
After months of indirect negotiation and lobbying of government permitting bodies,
Chevron and the three leading organizations of the Mitigation Task Force met to discuss
the final conditions for project approval. The first period of face-to-face negotiation
since initial meetings in the Fall of 1993 was encouraged by CBE's decision to block the
project's final permit:
Where you see most of the CEQA wins is where the company refuses to an EIR altogether and
they do a negative declaration or exemption where they just don't do anything at all. That's where
you see a lot of the plaintiff victories under CEQA. Here, they did an EIR and it was a decent EIR.
It wasn't perfect and certainly mere would have been some colorable arguments to make but we
felt on balance it would have been a hard case to make in Contra Costa Superior Court which is
where it would have gone. So we decided not to sue. And at that point, Chevron thought mat it
was all over, that they were ready to roll with the project. Instead, one of our lawyers, who used to
be legal director here, he came up with the idea of appealing their air permit at the AQMD,
arguing that the permit didn't require best available control technology. Obviously it's a new
source, all of the new components were new sources subject to new source review under the CAA
which at the time was in existence and not being undermined by the Bush administration. And the
requirement was that for any new or significantly modified source you have to install best
available control technology (BACT) on the whole facility. And Chevron wasn't proposing to do
that or we thought that there was a technology that didn't meet the BACT requirements. We did
the BACT analysis. The EPA had a BACT handbook. One of our scientists did a bunch of
mlbid.
104 Interviews with representatives of each of the major organizations in the Mitigation Task force
suggested links between projects included and the needs of City Council member constituents.
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research and we thought that we had some pretty solid arguments that they weren't installing
BACT.103
The AQMD hearing board is an obscure body appointed by Air District board members,
established to hear variance applications. CBE believes that their appeal was the second
community permit appeal heard by the hearing board in its history.
In March 1994, CBE initiated a final letter writing campaign focused on the hearing
board's lack of requirements for use of leakless valves, reducing and monitoring of odors,
and for the proper use of relief valves.106 CBE focused the public's attention on the
AQMD permit's allowance of additional pollution ("4,150 tons per year") in the North
Richmond area.107 The hearing process went only as far as the scheduling conference,
where according to coalition members, a substantial process was to be offered (5-6
months with allowance of public testimony). Chevron contacted coalition leaders and
agreed to discuss the project. The negotiating group included Henry Clark, Tom Butt
from People Do!, a staff scientist from CBE, Chevron's general manager, and several
other representatives of the refinery. Attorneys, while absent from the initial discussions,
provided assistance hi drafting language and attended subsequent meetings. The
substance of the discussions was not revealed during interviews, as attorneys considered
them privileged and community members did not recall the specific order of proposals
made and rejected. One attorney assisting the coalition commented on his experience in
dealing with Chevron as a representative of community interests.
To some degree all of these efforts are dominated by fact-specific situations. So there have
certainly been times that Chevron has been very insistent on its position and does not merely cave
or compromise just to get rid of a nuisance case and Tve been involved in cases where Chevron
has fought very hard against positions taken by my clients but 1 have been involved in other
situations where Chevron has shown that when it perceives a pollution problem and sees that
community groups are involved, has been willing to think through and problem solve and do it on
a professional basis and I think that's what happened here.108
As the discussions took place in the Bay Area, it was not difficult to have Chevron's
national corporate representatives involved or able to agree to certain agreement elements.
Some participants found the top decision makers more willing to take risks in discussing
a potential agreement, although they conceded that this is not always true. The
sophistication of the coalition leaders made it possible to exclude the attorneys from
certain conversations, giving Chevron the opportunity to present numerous ideas, in
addition to the mitigation measures developed by the coalition. The conversations also
benefited from a lack of intrusion by either the AQMD or outside officials. AQMD's
attorneys made it clear that they supported the talks and any mutually accepted outcome
that did not contradict the District's regulations.
105 Interview of Attorney, Communities for a Better Environment, June 6,2002, in Oakland.
106 Communities for a Better Environment (1994). Action Alert, March 3,1994.
107 Ibid; San Francisco Chronicle (1994). Groups Move to Block Chevron Fuel Project. San Francisco
Chronicle, April 6,1994, p. A15.
108 Interview of Attorney for Mitigation Task Force, June 12,2002, via telephone.
30
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Negotiators describe the coalition as having the right combination of skills and
knowledge about refinery processes to engage in the discussions.
What really was effective in this situation was you had a group like CBE which brings together
lawyers, organizers, and science/technical people and having negotiations can be very time
consuming and very difficult for community groups that don't have those kinds of resources. It
can be unequal. If it's unequal, negotiations will likely fail, because the result will not be good for
one side and either they will not accept the result or they will accept it and then hate themselves
for doing it and then being discredited, so it's real important that the outcome be determined not
by who has the most resources but what's the best solution for the problem for both sides. So
having a group like that meant that if we were talking just theoretically, let's put in better valves in
the refinery, having someone on our side saying hey, you know, there's this valve that doesn't leak,
that's real helpful and to be able to say to a company you know there are these valves and in fact
companies in their industry are using them and to get into at least that level of discussion. They
could come back and say yeah, but there is something really weird about that facility and mat's
why they were able to use it or it's a brand new facility and ours is 100 years old, then you're into
a real discussion, you're problem solving. Then your technical people can say well, that's not
exactly true, here's this other SO year old facility and we know how it can be engineered, men
you're into problem solving and mat's how you work things out together.
Problem solving took on a division of labor that mirrored the initial demands of the three
environmental organizations during the EIR process. Tom Butt, who now sits on the
Richmond City Council, worked on drafting "Section 1" of a Memorandum of
Understanding with the refinery, which included various elements of People Dot's initial
demands.109 There came a point where the People Do! representative had to scale back
his demands, under pressure from the other coalition members. Henry Clark, working
closely with CBE, focused primarily on Section 2 of the MOU, concerning job training, a
health clinic, and other social services. CBE encouraged Chevron to agree to a start date
for a fenceline monitoring pilot system (Section 3), so that the project would not be
contingent upon the success of Shell's system. Section 4 dealt with low emission valves,
a common element of CBE-initiated agreements. Chevron agreed to evaluate the success
of current valves in reducing fugitive emissions and to install at least an additional 350
valves. Section 5 reiterates Chevron's commitment to the EPA's 33/50 program, for
which the company had agreed to reduce company-wide emissions of 17 designated toxic
chemicals by 33% by the end of 1992 and 50% by the end of 1995 compared with 1988
emissions). Chevron agreed to make information about the program available to the
coalition, including future refinery reports of 33/50 chemical emissions. Below are the
elements to the MOU, signed on May 31,1994.
109 Interview of Tom Butt, Richmond City Councilmember, June 6,2002, in Richmond.
31
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Table 7. Elements of Memorandum of Understanding between Refinery and Coalition.
1 .
2,
3.
4.
5.
6,
1 .
2.
3.
4,
5.
Che vron will work with Bast Bay Regional Nrks Division to complete feasibility study for
emending the existing bike ttaM ccmeotfag N# Richmond to Point San Pablo {by June 1 995)
Wffi remove 1,000 feetof fence along Western Drive; work to minimize illegal dumping
WiU complete demolition of sfcw^
Will complete removal of abandoned pipelines along Western Drive by end of 1 995
Will spend $100,000 over 1994-1996toremovenon-nativehi]lside vegetationandinstallhUlside
landscaping; will utilize the Mayors Summer Youth Hiring Program where feasible
Will upgrade peroper*y in tite Office Hfll IfcUc Field ao>eentto Point Richmond through removal
of all but one tank; fences will be replace with redwood and vinyl fencing without barbed wire
. '^W- #>^^Va&
Enterprise Community around the refinery through donations through the United Way of at least
liJ nffltafe J994and*ii expected total of $5,500,000 over (he five year period ending in 1998
(compared to $330,000 in 1993). Five year figure dependent on corporate budget approval.
Quarterly report to Ojevron C^iiP
Will aggressively seek residents from community to fill open jobs at refinery; will supplement city
staff with two full-time employees to assist in locating qualified residents
Will provide sWJled job training to around 50 people eacb year from fee community on apriority
basis for at least the next two years
Will participate in establishing a Health Clinic in North Richmond; is investigating how the
company can help with the future site.
Will help bring an existing County building up to code for housing a Head Start building
^' ^^^^->;ii^C: K*
1,
2.
3.
1,
(including VOC's", odoroui sulfur and nitrogen compounds, and other chemicals suggested by
g«ams;
r *^ operati
beUows sealed valves where ai^ropriate (20X3 mstalIa^ 20% of all valves that are two mches or less, ainmmting to a^
least 350 valves
;
1. Will make avftiteble!992 information previous^ reported toBPA for air emissions of 33/50
program chemicals
available
Source: Memorandum of Understanding Between The Community Groups, West County Toxics Coalition,
People Do!, and Citizens for a Better Environment, and Chevron Richmond Refinery, May 31,1994.
32
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In return for the above concessions, the coalition agreed to withdraw Appeal Number
2869 before the Hearing Board, and to release all rights to challenge the RFP, either
administratively or judicially under CEQA.
Implementation, Both sides issued press releases shortly after the MOU signing.
Chevron framed the MOU as confirming "certain voluntary actions the refinery was
taking in the areas of environmental quality, local charitable contributions, emissions
monitoring, and emissions reporting. Specific actions to assure continued progress
include confirmation of efforts already underway and added detail to requirements that
•were apart of previously approved permits"110 When the MOU is compared to previous
concessions made during the Planning Commission and City Council phases of the
permitting process, these "efforts already underway" become apparent. The concessions
made by Chevron suggest a willingness by the company to meet some of the coalition's
demands, particularly when the mechanics of complying with the terms are left to the
refinery's discretion (e.g., contributions through the refinery's existing United Way
program, not a board composed of residents; installation of valves according to refinery
determinations; continuation of remote sensing only if the refinery determines that it is
useful). The employment offerings, which amounted to only a guarantee of 100 jobs over
two years, paled in comparison to the coalition's initial demands. The health center and
other concessions for the Enterprise Community were already offered, in large part, by
the company prior to the City Council's decision. Community right-to-inspect, CAP
technical assistance, reduced flaring, and other demands were not met. Emissions
reductions were recounted more than required. Even the language for open space and
visual quality items suggests that most of the concessions were already underway. More
importantly, the MOU does not include any provisions envisioning a change in the
direction, quality, or means of post-agreement community-corporate relationships.
While CUP reviews were carried out annually (1995 and 1996) and then once every five
years (starting hi 2001), provisions of the MOU were only loosely linked to the
monitoring capabilities of the Chevron CAP. The Planning Commission found the
refinery in compliance with its permit conditions on all three occasions. By 2001, all
requirements specified by the CUP for project facilities that had been constructed were
met, according to Richmond's Planning Department.111 By contrast, members of the
coalition and the broader community found Chevron's commitment to North Richmond's
environmental quality lacking.
One key provision requires Chevron to put in state-of-the-art fenceline monitoring system like
they have in Rodeo. And Chevron is supposed to put that in if another company puts it in and it
works. Which has happened and they haven't done anything...There's an example of where we
didn't get our bottom line, which was some kind of decent, better ah- monitoring at Chevron, we
didn't win it there, and that's still a battle that's going on.112
110 Chevron Richmond Refinery (1994). Press Release: Chevron Richmond Refinery Cleaner Fuels
Project Permit Appeal Withdrawn, June 2,1994, emphasis added.
111 City of Richmond Community and Economic Development Agency (2001). Five-year Status Report on
Reformulated Gasoline Project - Chevron Richmond Refinery, December 6,2001.
112%»ranote59.
33
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Item one, in my opinion, they really showed poor faith. They never really did it, they just
essentially said that they didn't understand it or that they had made an offer and East Bay Park
never showed up or whatever. However, now, seven years later, they are actually showing some
cooperation with the study that's being done there but I'm not real excited about what they did.
They did move some fencing. They did do the demolition. Maybe they were going to do this
anyway, I don't know. They did move some pipelines. They said they did [the $100,000 worth of
improvements], but they never provided any proof of it and I'm not sure they really did it'13
What we're focusing on right now is children and women being exposed to mercury from
contaminated fish in the Bay. So that's sort of our main focus. And so one of the things is to
identify the source, which has not been easy to do. The second thing we're doing, we have a lot of
subsistence fishing along our shoreline. It's just educating folks of the risk associated with eating
contaminated fish on a daily basis, especially women and children. And that's what our high
school students have been really involved in, is sort of educating the public and conducting
surveys. Now, we take the information we learn and we discuss it with our local elected officials,
letting them know whatever efforts that you've done so far, they're not working, because people
are still unaware of the risk. In our area we have the Richmond Marina, which is an EPA
superfund she, and folks are fishing there every day. The entire Richmond Harbor is an EPA
superfund site, and at die end of the Richmond harbor is a pier, where folks go and fish.114
The solution here unfortunately is to just shelter in place. We're talking about a lot of folks who
are low-income living next to these facilities and in substandard housing, so you have places
without windows, you have places where doors are not going to be air sealed, you have lots of
places where these emissions are going to seep in, and not only in the homes, but the schools are
in such poor condition. Nystrom Elementary, the school 1 talked about earlier, was built in the
1940's...They're close to the other facilities where whenever an accident happens, they're usually
right in the line of it, and what they are told to do is shelter in place. Well, if you go into these
schools, you see windows broken. And so we have been pressuring our local officials to include
part of the mitigation funds or the fines that they are assessing to the folks responsible for the
accidents, to put that aside, to earmark some of that for home improvement and for school
improvement... We are also trying to get the school administrators to actually think about the true
causes for the absenteeism in the district What we find is that a lot of the students that we work
with, you'd go into a classroom where practically 90% of the students were using inhalers. And
they thought that was perfectly normal. They had a process where they would identify the inhalers
and they'd put them in a bag. OK, this is not normal. "3
General Chemical used to be called Chevron Ortho. Then they wanted to take Chevron's name off
of it, but the production at the plant has never changed, and basically what they do is produce, a lot
of the product that they produce is for Chevron's refining process. General Chemical is viewed by
most people as being still an arm of Chevron although it doesn't show that on paper as much.
Both Chevron and General Chemical would have a series of releases from tune to time... I think the
whole city is kind of an uproar to clean the air up. And they know that Chevron and General
Chemical are major threats to air quality. The other thing, the city has established a Safety
Review Panel to look at safety culture at General Chemical."6
These are but a few of the concerns raised during interviews with Richmond residents,
that point to linkages between refinery operations and health, education, and quality of
life. As the environmental coalition had decided to focus on neighborhood councils,
which several interviewees suggested represent a biased sample of resident concerns
113 Interview of Richmond City Council representative, June 6,2001, in Richmond.
114 Interview of Richmond resident, October 8,2002, via telephone.
115 Interview of Richmond resident, October 8,2002, via telephone.
116 Interview of Richmond resident, October 7,2002, via telephone.
34
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(neighborhood councils are often formed around a single public works or social service
concern), the above interests and many expressed during the public comment process
were not addressed. Nor was an understanding that the refinery and other major facilities
were not going to relocate converted into the kinds of discussions with Chevron and the
city that could have yielded needed improvements, including reduced emissions and
emergency planning activities (such as securing housing stock and schools against
releases). It would be unfair to hold the coalition accountable for this, as they went far
beyond the call of duty in winning public support and concessions. But a focus on high-
tech experiments and visual and open space improvements did very little to stem the tide
of refinery emissions (as suggested by Figure 3) or to improve the emergency response
capabilities of local residents beyond what the company had already committed to. High-
profile accidents continue to occur at the Chevron refinery, and public distrust of facility
* • * \\f
practices remains intact.
Figure 3. Total Air and Water Releases of Toxic Chemicals to the Environment from
Chevron Refinery, 1988-2000 (vertical line represents MOU signing).
• Air Emissions (Ibs)
• Water Emissions (Ibs)
Total Emissions (Ibs)
1088 1990 1992 1994 1996 1998 2000
Source: Environmental Defense's Scorecard. www,scorecard.org/env-releases/facilitv.tcl?tri id=94802CHVRN841ST.
accessed October 15,2002.
117 See Standen, A. (2002). Chevron's Spheres of Influence Activists accuse Richmond oil refinery of
illegally thwarting environmental reviews, and a beholden city of passing the buck. East Bay Express,
September 25,2002; Kay, J. (2002). Refineries top polluters on EPA list in Bay Area: Discharges taint air,
water and land. San Francisco Chronicle, May 24,2002, p. Al 1; San Francisco Chronicle (2002).
Lawsuit says Chevron pennit violates law. San Francisco Chronicle, August 20,2002, p. A19; Associated
Press (2002). Chemical Leak Forces Local Residents Indoors for Several Hours. Associated Press State
and Local Wire, February 1,2002, BC Cycle; Koopman, J. & Kim, R. (2001). Gas leak at General
Chemical in Richmond: Residents Warned Belatedly to Stay Indoors. San Francisco Chronicle,
November 30,2001, p. A30; Sarkar, P. (2001). Chevron Refinery Fined $300,000: 52 violations from
1998 to May. San Francisco Chronicle, July 10,2001, p. A12; Kay, J. (2001). Chevron plant hit with fine:
Six-digit Penalty for Richmond Refinery's Late Response to Leaks. San Francisco Chronicle, March 27,
2001, p. A14.
35
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Discussion. The primary obstacle to meeting some of the community's broader interests
through permitting processes was summed up by a coalition member's assessment of
their litigation strategy.
One of the problems was that even CBE acknowledged that while they agreed that you could
probably make a case that there was a nexus between some of these things that the [proposed]
foundation would address like poverty and education and jobs, that there was not a sufficient
record of that to make a legal challenge of it and so they were not willing to front the lawsuit on
the BIR based on that particular area, the nexus issue.
Because the various parties to the permitting process were not involved in direct
negotiations until the AQMD hearing, they were left to craft proposals and present them
to the various decision-making bodies through public comment or private correspondence.
The administrative boards then had to consider complex questions relating to the
appropriateness of each proposed mitigation or concession, decisions that relied on a
combination of legal reasoning, technical assessment, and politics. Most of the resulting
permit changes designed to mitigate the refinery's impacts on surrounding communities
were established by the Planning Department's report to the Commission. These changes
were found to have a clear nexus to project impacts. Most of the remaining changes
agreed to by Chevron and endorsed by the City Council came in the form of the
company's five point plan, which in large part reiterated certain concessions or alliances
that the company had already made. These changes were designed to encourage City
Council approval and to win popular support for the RFP project. It is also clear that
certain provisions proposed by Chevron at this stage were initially advanced by the
environmental coalition. But after this point, the dynamics shifted: the company,
seeking to de-link its own proposals from the permitting process (so as to avoid nexus
challenges as well as unpopular precedents for the refining industry), focused not on
meeting the broader interests of the community but on securing the support of the
permitting body AND the groups most likely to offer administrative or judicial challenge.
After the EIR process was over and certain resident concerns were incorporated into the
CUP by planning staff (approved by the Commission), the company shied away from
ideas that could have more directly addressed the questions of poverty, education,
employment, and long-term health that were commonly raised in North Richmond.
Negotiations leading to the MOU were focused on comparatively small, incremental
steps toward satisfying the well-organized demands of three groups, who had determined
that broader questions at the heart of resident concerns would prove difficult to uphold in
court.
It would be inaccurate to consider the CUP provisions, Chevron's five point plan, and the
MOU as part of an overarching "good neighbor agreement." In fact, each of these stages
increasingly constricted consideration of the broader terms of the facility's continued
existence in a given locale, which is the cornerstone of a community-corporate compact.
By the time the MOU was signed, commitments were linked to existing institutions and
modes of communication. Still, the coalition should be commended for its dedication of
thousands of hours to the permitting process, and for securing needed resources for the
community. Each stage of the permitting process illustrated how community
representatives can effectively bargain with corporate entities. But by doing so, they
36
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have given us a window into the limits of the permitting process, even when the monetary
scope of a project lies in the hundreds of millions, to include broader interests and invent
means of addressing them. And the implementation phase suggests that even the results
of incremental bargaining can be difficult to enforce, if the mechanisms for improved
monitoring, verification, communication, enforcement, and broader relationships are not
adequately addressed.
37
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Seeking Good Neighbor Agreements in California
Part II.
"From Catacarb to Committees"
My biggest concern was always how do we avoid another Catacarb and how do we report it, how
do we notify people, and what do we do after it happens? - Douglas Tubb, Crockett resident
Background, Researchers have attempted to establish a link between industry location
and high disease rates in Contra Costa County since the late 1970's. The first concern of
note, lung cancer, was investigated through comparison of age-adjusted lung cancer
incidence rates in industrial and non-industrial census tracts throughout the County.118
As methodologies for epidemiological research improved, researchers began to estimate
actual exposure to air emissions from petroleum and chemical plants, and to correlate
these results with cancer incidence and mortality.119 Relying on a model developed by
the Bay Area Air Quality Management District (AQMD), one study found a positive
relationship between estimated residential exposure to petroleum refinery and chemical
plant emissions and incidence rates for several cancers between 1966 and 1977.120 Such
findings were disputed by industry and government officials. For instance, a study
funded by the EPA's Health Effects Research Laboratory found that a relationship
between ambient air SC>4 and lung cancer in males could be controlled for by including a
"blue collar" worker variable.121 It was also suggested that a major contribution to lung
cancer in the area was cigarette smoking.122
We are right in the cancer belt, with many other refineries, and I remember reading in the mid-
1980's the fact that between Richmond and Pittsburg, California, people living between Richmond
and Pittsburg had a 38% higher cancer rate on several different types of cancers. I was chair of the
Crockett Power Plant Committee that fought the power plant in Crockett from 1984-1989. And of
course the amusing thing was when we presented all of this, which was of course public data, the
consultants hired by men Pacific Corps from Oregon, as their paid scientific experts, responded to
this information by saying that well the people die off along the river because they're all blue
collar and they all smoke. And this is why they die off; it has nothing to do with being so close to
a series of refineries. And I said to him, are you telling me that the people in Arinda, which is an
upper class place far away from all of these refineries, don't smoke?123
118 State of California Department of Health Services (1981). Lung cancer in Contra Costa County, 1969-
1979. Prepared by the Resource for Cancer Epidemiology Section, October 21,1981.
119 Kaldor, J., Harris, J.A., Glazer, E., Glaser, S., Neutra, R., Mayberry, R., Nelson, V., Robinson, L., &
Reed, D. (1984). Statistical association between cancer incidence and major-cause mortality, and estimated
residential exposure to air emissions from petroleum and chemical plants. Environmental Health
Perspectives, 54: 319-322.
120 Ibid.
121 Austin, D.F. (1984). Epidemiological study of the incidence of cancer as related to industrial emissions
in Contra Costa County, California. United States Environmental Protection Agency, Health Effects
Research Laboratory, July 1984.
122 Ibid.
123 Interview of Crockett Resident, October 31,2002, via telephone.
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In a County so inextricably linked to heavy industry, Contra Costa residents and officials
have struggled for decades to balance economic development with public health and
safety. Occasionally, that balance was severely disrupted, opening a window on the roles
and responsibilities of refinery management and monitoring agencies, and the unique
concerns of local residents. As with the General Chemical accident that influenced
residents' concerns with Chevron's reformulated fuels project (RFP), another major
release shaped Unocal Corporation's Reformulated Gas Project (RGP) into one of the
most complex community-corporate environmental agreements to date.
The Unocal Corporation, which operated a petroleum refinery sandwiched between the
communities of Crockett and Rodeo in northern California, has disrupted the delicate
balance on more than one occasion in California. Unocal is perhaps most noted for its
ownership of a six-square-mile oil field 30 miles south of San Luis Obispo, hi Central
California. Over a period of 38 years, Unocal allowed its operations to contaminate the
Guadalupe Dunes with approximately 20 million gallons of petroleum thinner (diluent).
This accident remains the largest petroleum spill in United States history.124 The Unocal
organization evidenced a number of characteristics that contributed to a sense among its
employees that a daily loss of up to 200 barrels of diluent was within the realm of
acceptability. A strictly hierarchical seniority system, in-house hiring, and operating
procedures that at times included purposeful petroleum spillage reinforced this sense over
time.125 By the mid-1980's, some workers began to report the spilled diluent to their
foreman, who did not pass the information along with the exception of an immediate
supervisor. After a worker on disability brought the spill to the attention of authorities,
California Fish and Game wardens raided UnocaTs offices and found substantial
evidence of unreported spills and plume maps tracking the plume for several years.
Subsequent investigations revealed an organization capable of perpetuating accidents and
encouraging a "culture of silence" about their true origin and extent.126 By the end of
1998, Unocal had spent $40 million on emergency remedial actions at Guadalupe as well
as $43.8 million to settle a civil case with the state of California.127 Cleanup, it was
estimated, would continue for 20 years.
One element of the Guadalupe Dunes spill to receive less attention in the media was the
inability of government agencies to identify or properly respond to the spill.
Administrators failed to act until known aspects of the spill fit their criteria for what
lift
constituted an "emergency," The sight and smell of petroleum on site visits by Fish
and Game warden was part and parcel of their routine inspections of the operation. Spills
of more than one barrel were within the company's purview for reporting responsibility.
And acute spills fell under the Federal Oil Pollution and Lempert-Keene-Seastrant Acts
124 Beamish, T.D. (2002). Silent Spill: The Organization of an Industrial Crisis. Cambridge, MA: MIT
Press.
125 Beamish, T.D. (2000). Accumulating trouble: Complex organization, a culture of silence, and a secret
spill. Social Problems, 47(4): 473-498.
lfe Supra note 124.
127 Cone, M. (1998). Unocal to pay 43.8 million fine in spill. The Los Angeles Times, July 22, 1998, p. A3.
128 Beamish, T.D. (2002). Waiting for crisis: Regulatory inaction and ineptitude and the Guadalupe Dunes
oil spill. Social Problems, 49(2): 150-177.
39
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of 1990, pieces of legislation designed to ensure response to tanker spills.129 Once
agencies did react to the situation at Guadalupe Dunes, other problems such as staff
rotation, conflicts over jurisdiction, and fluctuation of regulatory agency involvement
prolonged a lack of effective governmental response.130
Unocal's contribution to large-scale, high-profile accidents, and problems with agency
response, neither started nor ended with the above crisis. A lawsuit filed by the Sierra
Club alleged that the company committed 2,300 discharge violations at its Rodeo refinery
between 1977 and 1989, bypassing its wastewater treatment plant in Contra Costa County
and dumping hundreds of millions of gallons of toxic waste into San Francisco Bay.131
While it was estimated that the company saved between $20 and $30 million through
rerouting, Unocal settled the case for $4.2 million in civil penalties in 1990.132 The
lawsuit encouraged the drafting of legislation to allow for surprise inspection of
companies that disposed of waste in California waters. The proposed legislation was
vetoed by Governor Deukmejian, who cited similar existing authority within the Regional
Water Quality Control Board.133 As with the "silent spill" that occurred in Central
California, a foreman was told by his superiors not to report the above practices.134 Yet
the United States Attorney's office in San Francisco declined to prosecute Unocal for its
discharges into San Pablo Bay.135
It seemed a healthy balance between economic development and environmental quality
was not always encouraged by regulatory enforcement of UnocaTs water discharge
violations. The same could be argued for the facility's air emissions, which have been
most closely scrutinized for links to County public health concerns. Immediately
following the Sierra Club's suit in the matter of Unocal's wastewater discharges, the
AQMD released a report documenting the region's air pollution "hot spots." Unocal
ranked 9th on a list of the region's air toxics emitters.13 Yet agency records suggest that
fines for air emissions violations and accidental releases, particularly on a per violation
unit basis, were negligible from 1988 through 1994 (See Figure 4) for the company's
refinery in Rodeo, an unincorporated town in Contra Costa County.137
129 Ibid
130 Supra note 124.
131 Los Angeles Times (1987). The state. Los Angeles Times, April 6,1987, p. 2; Los Angeles Times
(1988). Appeals court reinstates decision that Unocal Oil violated clean water laws. Los Angeles Times,
July 26,1988, p. 21; Sward, S. (1990). Los Angeles Times (1989). Unocal faces possible fines in
pollution case. Los Angeles Times, May 20,1989, p. 28; Settlement over toxics dumped in Bay. San
Francisco Chronicle, February 23, 1990, p. Al.
132 Sward, S. (1990). Settlement over toxics dumped in Bay. San Francisco Chronicle, February 23,1990,
p.Al.
Lucas, G. (1990). Deukmejian vetoes waste dump inspections. San Francisco Chronicle, June 2,1990,
p.A4.
'M Supra note 132.
135 Holding, R. (1993). Environmental cases get short shrift from federal prosecutors. San Francisco
Chronicle, July 6,1993, p. A6.
136 Nolle, C. (1990). Bay's air-polluting "hot spots"; Agency finds that most of the worst toxic offenders
are refineries. San Francisco Chronicle, August 2,1990, p. A5.
137 Personal communication with Bay Area Air Quality Management District, July, 2001.
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1988 1990
1992 1994
1996
1998 2000
Figure 4. Fines Collected by AQMD for Unocal Refinery Violations, 1988-2000.
The Problem. A swift rise in agency fines against Unocal for air violations in Rodeo can
be traced to a major release that occurred around Labor Day weekend in 1994. As with
the spills at Guadalupe Dunes and into San Francisco Bay, this air release departed from
traditional industrial accidents in a number of ways. The problem was "slow to
manifest," leading to "gradual, rather than sudden disruption."138 It was not readily
identified as a serious accident by some residents of nearby Crockett, Rodeo, and the
fenceline communities of Tormey and Bayo Vista (a public housing authority that
borders the refinery to the south). And it set in motion a variety of internal and agency
responses aimed at downplaying the seriousness of the release to employees, inspectors,
and eventually the public. Residents recall the release, which took place between August
22 and September 6,1994:
We woke up one morning, it was Labor Day weekend, 1994, and there was, we had a house that
was on a hill, it's like the poor man's San Francisco. It's kind of like a town on the Mediterranean
that comes up from the sea and all the houses are built terrace-like. And our house had a
commanding view of the valleys and we faced, with the back of the house with huge banks of
windows faced the refinery which was west. And we woke up and I looked at the windows and
they were covered with a sap-like substance like from a pinetree and I went, oh, God, what did
those kids do now? And then I thought well, what is this, is this from the trees? We had a lot of
acacia trees around us that exuded kind of a sticky thing after they flower but it was the wrong
time of year so I was really stumped. What was going on? And then I started getting a call from a
gal who I worked with on the powerplant committee. She lived farther up the hill from me, and
she was a real estate agent, and she had gotten a call from one of her clients saying, there's crap all
over the cars, there's stuff all over the garden, the house, everything, up and down the streets, they
were trying to sell their house at the time, and they were a little upset
Itwasa 16 day release. I was here for the first half of it and was gone the last half which was a
good half to be gone from because it got steadily worse all the time as the hole got bigger in the
[refinery] unit. But my wife was here during that timeframe and she became very ill from it and
still suffers today from it. There's about 50 or 100 people I'm estimating who suffered physically
from that, many of them, my wife included, that cannot work anymore... [I did not learn about the
138 Supra note 127,p. 151.
139 Interview of Member, Shoreline Environmental Alliance, May 31,2002, via telephone.
41
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release] until we read about it in the paper. Again, I was gone that timeframe but when I came
back there were these brown, goopy spots all over my house, and windows that would not clean
off. And so it was really the last two days that it was heavy enough, the release was heavy enough
and the meteorology was just right so that it all just came over the town and dropped down in a
fog bank. Coalesced in a fog drop and some dropped out. And so people started calling the health
department for two days saying we've got this stuff everywhere and they said it might be pine
pollen. They'd never come across anything like this before so they didn't know what it was.
Finally, the company that was right next door to Unocal, at the time it was Wickland Oil, the
manager called over and said we've got this crap just all over our units and people are getting sick,
you've got this brown stain just trickling down the sides of the tanks. They were a little storage
facility just on the East side of the refinery. You may have driven by it. If they hadn't spoken up
I don't know what would have happened. It's likely it would have gone on. So they said what is
this stuff? and shut it down. They could see the plume coming out horizontally out of the pipes.
And the workers were trying to get the company to shut it down, too. It wouldn't happen.
Figure 5. Unocal Refinery and Adjacent Communities.
Hillcrest
Elementary
The "brown, goopy spots" that rained down on communities both down- and upwind of
the refinery contained a solution called Catacarb. A Unocal Material Safety Data Sheet
describes Catacarb as follows:
Health hazards: Harmful if swallowed. Causes severe eye and skin irritation. Overexposure may
cause damage to kidneys and liver. Avoid breathing vapor or mist. Liquid. Brown-black. Odor:
None. Exposure guideline only available for diethanolamine (3 ppm OSHA, CalOSHA; .46 ppm
ACGIH). Target organs include the central nervous system. Accidental release measures: Isolate
140 Interview of Crockett Resident, June 8,2002, in Crockett.
42
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danger area, immediate cleanup of any spill recommended. In California this is a non-RCRA
hazardous waste due to the vanadium content. Diethanolamine is subject to SARA 313 and 40
CFR 372 reporting requirements.141
Catacarb was used to strip sulfur from refined gasoline in the Unocal refinery's
unicracker unit.142 The process by which well over 100 tons of the solution were released
into surrounding communities began with a slow release of a "chemical mist" from the
top of a 140-foot processing tower at 6:55 a.m., August 6.143 Media investigations
uncovered an "initial flurry of concern" which led to the declaration of a refinery-wide
emergency and notification of the County Health Department.144 Unocal workers started
to shut down the tower, but the order to cease operations in the unit was countermanded
by the refinery's second-in-command. Hastily called meetings between supervisors and
engineers (without the consultation of environmental and health and safety workers)
yielded the conclusion that there was a "very slim" chance that the leaking tower would
explode. Management decided to keep the unit running until its next scheduled
maintenance on October 8. County health officials were told that the emergency was
under control. Meanwhile, refinery workers were noticing sticky brown spots on their
cars and on equipment near the unicracker. Operator Diane Wang described the leak,
which by early September was noticeable from nearby roadways, as a "giant troll and it
was becoming monstrous."145 The unicracker chief repeatedly told his workers that 'Ve
can make it." General Manager Stephen Plesh left for the Labor Day weekend with
orders to keep the unit running. By September 4, workers began to notice Catacarb
residue on the storage tanks of neighboring Wickland Oil. Residents started to complain
to the company and to health officials.I46 Workers noticed a massive loss of Catacarb as
they began to run out of potassium hydroxide. Then, Wickland Oil notified the refinery
that their property was covered in Catacarb and that their employees had been ordered to
take shelter. The unit was finally shut down, on September 6.
147
Evidence for why Unocal officials were so reluctant to tend to the leaking tower can be
found in the plant's safety record. In 1989, the refinery posted the longest safety record
in the country: 6 million hours without a serious accident to cause anyone to miss
work.148 Plant management, according to many interviewed, operated under an incentive
structure that included performance bonuses, which discouraged such simple procedures
as routine equipment overhauls (the hydrogen processing tower's overhaul was delayed
from February to October 1994).149 And refinery maintenance staff acknowledged mat
141 Unocal Corporation (1995). Unocal Material Safety Data Sheet: Catacarb. February 6,1995.
142 Director of Enforcement, Bay Area Air Quality Management District (1994). Unocal refiery 8/22/94-
9/6/94 Catacarb Release Office Memorandum to Air Pollution Control Officer, September 23,1994.
143 Woody, T. (1995). Sixteen long days of delay and indifference. The Recorder, October 4,1995, p, 17.
144 Ibid.
145 Ibid.
146 Bay Area Air Quality Management District (1994). Incident Report Number Three: Unocal
Corporatino - Refinery. September 9,1994.
147 West County Times (1994). Anger over leak. West County Times, September 23,1994, p. 1.
148 Stein, G. (1989). Two refineries win awards for job safety. Los Angeles Times, April 30, 1989, p. 12.
149 Hunt, K. (1995). Why leak went unchecked: Bay decisions, fearful employees added up to leeting
release of toxic mist go on for 16 days. San Francisco Examiner, April 16, 1995, p. C-5.
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an early shutdown would cost nearly $1 million.150 Yet as the facility struggled to
continue its operations, residents started to get sick. Health problems mentioned by
residents during interviews included gastrointestinal problems, skin reactions, eye
dysfunction, nerve damage (including some which led to root canals), memory loss,
numbness, loss of feeling in fingers, post-traumatic stress, and chronic fatigue,151 Indeed,
a study released in March 1996 suggested that residents of Crockett suffered nearly
double the rates of eye problems, memory loss, and anxiety as a control community,152
Those who didn't manifest any symptoms simply became angry:
I heard of a meeting being set that was going to involve a huge amount of different parties that
were going to be in attendance to explain the accident, a public meeting...There was a lot of
discussion throughout the panel, the company, some of the community groups speaking.
Predominantly it was a presentation by the company followed up by the County's explanation and
health concerns. I was angered that regardless of whether it was soapy water or exhaust or what
have you, that the term "no offsite impact*1 was used so often and continues to be used and
obviously before we woke up it was used for decades and I didn't care for that. I realized that if
they would tell you that at this [event], then it's possible that other things happened that we
weren't aware of. So I was angered at the fact that it seemed that someone was telling us that we
were not impacted.133
This resident is recounting a number of community meetings that were held once the
Catacarb spill was made public. The meetings featured panel discussions with
representatives of the company and County officials. In addition, Unocal communicated
with residents through a letter describing a "harmless" potassium carbonate solution as
the culprit.154 Residents also approached the County Health Department for an
explanation shortly after the release ended. Residents recall being told that the mixture of
chemicals was only a threat when airborne. Since the Department had only learned of the
release after the Catacarb had settled on neighborhood homes, yards, and streets, there
was no "need for alarm." A series of equally frustrating recommendations were made to
residents during the community meetings. For instance, residents were instructed not to
150 Supra note 145.
131 These ailments were mentioned in interviews with residents of Crockett, Rodeo, Tormey, and Bayo
Vista. See also Hunt, K. (1994). Hundreds suffer after toxic gas leak. San Francisco Examiner, December
18,1994, p. C-7 ("Jane Strike went blind. Vickie Wood will give birth to a stillborn child and doesn't
know if the twin she also carries will be healthy. Leanna Devy has had fainting spells for two months. All
three are convinced their problems began with a toxic chemical leak at a nearby Unocal refinery that went
unabated for more than two weeks last summer.").
152 Bowler, R, (1996). Health study of a community exposed to a chemical spill: Final report of the
Crockett Health Study. San Francisco State University, March 29,1996.
133 Interview of Tormey resident, October 24,2002, via telephone.
154 Interview of Crockett resident, May 28,2002, via telephone.
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clean their cars or homes but to call Unocal and ask for professional assistance.155 At the
same time, they were told that garden vegetables were safe to eat.156
At this moment, it is instructive to consider what was about to happen: between mid-
September and December 1994, a group of several dozen residents, many suffering from
ailments stemming from the Catacarb release, negotiated a wide-ranging, multi-million-
dollar good neighbor agreement with the refinery. The 21 -page agreement between
Unocal, Crockett, Rodeo, Tormey, Bayo Vista, the Shoreline Environmental Alliance,
and Citizens for a Better Environment (CBE) was fashioned by 10 committees of
between 2 and 10 residents operating with varying degrees of technical assistance, wide-
ranging backgrounds and objectives, and uncertainty as to whether regulatory agencies
would improve the emergency management, pollution monitoring, or enforcement
services mat they had the authority to provide. Under the circumstances, the most
surprising aspect of this process is that it resulted in any agreement at all. But after
numerous calls, informal gatherings, and 14 formal negotiation meetings with refinery
management, an agreement was reached in principle in December 1994. It provides an
unprecedented opportunity to consider the opportunities and limits to the use of
negotiation to address the complexities of industrial accidents and their effects on local
residents.
Long before the Catacarb accident, Unocal had begun to seek County approval for a land
use permit for its reformulated fuels project. As we will see, the release heightened
awareness of the project and substantially broadened the scope of resident and
organizational involvement. Prior to the spill, only a few constituents expressed concerns
over the project, which would be
located on approximately 25 acres of the 1,100 acres Unocal San Francisco Refinery, in the Rodeo
area. This project also includes a 3.7 acres off-site parking area on two contiguous parcels located
south of and adjacent to the Unocal refinery property between San Pablo Avenue and the Southern
Pacific Railroad right-of-way. If approved, the project would involve the construction of two new
refinery components (a Hydrogen Plant and a Steam Boiler Plant) and the modification of three
existing processing units (the Pentane Handlin/Benzene Saturation equipment, the Gasoline
Blender, and the Steam/Power Plant). In addition, the project includes the construction of a
maximum of 10 new storage tanks, an increase in shipping in order to transport reformulated
gasoline components between Unocal's San Francisco and Los Angeles refineries, additional
pipelines for transferring intermediate streams and feeds between processing units and tanks,
additional drain systems needed to connect project components to the existing refinery process
135 All interviewees who were residents of Crockett or Rodeo at the time of the incident reported receiving
these instructions. In an October letter to the County Community Development Department from Unocal
states that "Unocal's efforts to clean cars, windows and other personal property are still under way.
Approximately 60 clean-up professionals are responding to property damage claims. We expect clean-up
efforts in the community to be completed shortly. Flesh, S. (1994). Letter to Dennis Barry, Contra Costa
County Community Development Department from Stephen Plesh, General Manager, Unocal San
Francisco Refinery, October 12,1994.
156 Interview of Crockett resident, May 31,2002, via telephone; See also Contra Costa County Realm
Services Department (1994). Letter to Contra Costa Residents from Public Health Division, County Health
Services Department, October 12, 1994 ("Is food from the garden safe to eat? It is prudent to thoroughly
wash and peel garden produce in the Tormey and Crockett area before eating it.1').
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drain system, and changes to utility systems to support project needs for water, electricity, natural
gas, and hydrogen.1"
A draft Environmental Impact Report for the Unocal Reformulated Gas Project was
prepared in June 1994, following a process that included a scoping session on December
29,1993.158 Following a 45-day review and public comment period that was extended to
July 25,1994, a final EIR was prepared to respond to significant environmental issues of
agencies and residents.159 The final EIR was prepared by September 1994, and does not
reflect concerns raised by the Catacarb incident. Figure 8 provides an overview of
project impacts described hi the DEIR.160 Figures 9-12 summarize the concerns of public
agencies, labor unions, citizen organizations, and individuals expressed throughout the
public comment period, which included a public hearing held at Hillcrest Elementary
School in July, 1994. There were few public comments on this project, which can be
explained in part by resident claims of inadequate notice given to potentially impacted
communities.
137 Contra Costa County Planning Commission (1994). Agenda, Tuesdsay, October 4,1994 - 7:30 p.m.
158 Contra Costa County Community Development Department (1993). Notice of Preparation: Notice of
Scoping Session, Environmental Impact Report for the Proposed Unocal Reformulated Gasoline Project,
December 9,1993.
159 Contra Costa County (1994). Response to Comments Document for the Unocal Corporation
Reformulated Gasoline Project, Land Use Permit 2038-93, September, 1994.
160 Contra Costa County (1994). Draft Environmental Impact Report for the Unocal Corporation
Reformulated Gasoline Project, Land Use Permit 2038-93, June 1994.
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Table 8. Potential Impacts of the Unocal Reformulated Gasoline Project and Reported
Significance Levels,
Land use
Traffic
Potential physical Disturbance due to constructien/demolition; proposed
tanks 109,110, and 112 incompatible with residential uses
LS
Operation of construction parking lots and access controls; construction
traffic will contribute to deterioration of pavement on Parker Avenue and
San Pablo Avenue
Criteria poii
Public Increase in excess lifetime cancer risk of 3 in one million for occupational LS
Health/Safety and 1.3 in one million for residential receptors; minimally increased risk of
chronic noncancer health effects
Public
Services
Construction would require increased water supply of 5 gpm; operation LS
would increase water demand by 100 gpm; no significant impacts for on- or
off-site events or public emergency response services
LS
LS
.w-
LS
Energy Construction and operation will consume additional energy
"" '*' *~ "ife
Geology Potential feilure of cut and fill slopes could cause damage to project;
grading and excavation could create unstable slope conditions; during
project lifetime, refinery is likely to have at least one moderate to severe
earthquake that will cause strong groundshaking
LS
LS
-"". >, Likelihood of accidental spills during transfer activities is high
. Consttuction of Tank 109 would generate short-term noise at Hillcrest
, School and adjoining residences; operating machinery in proposed project
, would substantially alter area noise environment
LS
LS
> Native grassland could be affected by rapture or leak from tank 1007
LS
LS
**e" * Hydrogen Plant, Steam Boiler, Peatane Handlmg/Benzene Saturation Unit S/LS LS
modifications, and several new tanks visible from a number of directions
*•
LS = less than significant; S = significant; B = beneficial
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Table 9. Primary Concerns Expressed During EIR Process by Agencies
Bay Area Air Quality
Management District
• Best available control technology is required for any pollutant emissions exceeding tht
threshold limits set by tiw AQMD for new or modified stationary sources, the
threshold for regulated pollutants is 10 pounds per day per pollutant
• Emission o$»te required for new or modified sources of nitrogen oxides, precursor
organic compounds, paniculate matter, and sulfur dioxide
* Modelling Is required for CO, NOx, and SO2
East Bay Municipal Utility
District
Proposes a variety of factual corrections regarding reclaimed water use for the
West Contra Costa Unified
School District
"H* ' s, ~
of the refinery (Hercules and Ohlune);
traffic, transfer of hazardous waste, cumulative health hazards and risk of upset
Sail FrancfKo Bay Conservation • Any construction on or over the water or within 100 feet of the line of the Highest tidal
and Development Commission action of the Bay would require permit approval
• Report indicates a high likelihood of accidental spill every 12 years resulting in
significant impact; should be analyzed relative to other marine terminals.
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Table 10. Primary Concerns Expressed During EIRProce^Labor Organizations.
Contra Crisis Btittding and
Construction Trades Council
Research given to socio-economic issues T*
Will tocal workers toe utUfaad?
What type of job skflis andin&rittg will be Kspared?
Will there be adequate safety framing1?
Wffl there be a community outmch pttgram «* the employment of local women,
minorities, disadvantages?
Will wo& force beprovidetl wife health care benefits?
Witt wffl impact be on 2 5 ascondary jobs affeeied for every one cawwftim job?
Should review the Contra Costa Board of Supervisors' stody, "theJimpset of Out-of-
Atea Workers on Non-residential construction in Contra Costa County
areas of impact
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Table 11. Primary Concerns Expressed During EIR Process by Community Organizations.
Rodeo Citizens Association
Haven't had the proper amount of time to review this document; Rodeo and Crockett
are located fa unincorporated areas where citizens cannot rely on elected officials to
review DEIRs for them.
Within loss than a year, we have had four EIR processes to review and comment an;
ask for a 45 day extension
Request that too County provide an advisor for unincorporated citizenry impacted by
the project (Rodeo, Crockett, Torraey)
Unocal ia already in violation of the Clean Water Act for selenium discharges; project
will produce further selenium
Unocal should restore native grasses to Bay shore similarly to what Chevron is doing
in Richmond
Field survey for vegetation and wildlife insufficient; conducted on one day in
Inventory of wildlife species, especially birds of prey, is incomplete
No heavy metal ecological risk assessment has been conducted
Should enclose flare to reduce .emissions and noise
Must not be allowed to increase VOC emissions, similar to Shell EIR conditions
Emission of particulates is over the state limit; construction will add to it
A NE wind could blow nitrogen oxide odd sulfur dioxide over Rodeo from the main
terminal stations and contribute to acid rain
Provide the Sheriffs department with noise monitoring equipment to enforce noise
ordinances
Truck traffic will increase; must compensate Rodeo for increased traffic through the
main roadway or get to 140 at the Crockett on-ramp
Comprehensive landscaping on hill tops needed to compensate for visual impacts
Should hire workers from Rodeo/West County.
Remote sensor fencelinc monitoring with either infrared or pulsed laser system with
results open to citizens
Use of bellows valves, double mechanical seals
Tree planting plan should be funded lor at least 3 years (estimated cost between $39-
46 thousand)
DEIR should Include discussion of financial impact on County revenues
Community fund similar to the C&H Sugar fund in Crockett must be set up for the
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Table 12, Primary Concerns Expressed During EIR Process by Individuals
Howard Adams. Crockett
Improvement Association
• Crockett is surrounded by many smaees of air emissions; pro>
insignificant compared with Interstate 80; ^ore carbon monoxide and hydroeaifeons
from that source than from any Industry
* Project will hopefully reduce poftuWflts on 1-86 if traffic levels «ff
* Growingproblem of particulars; already out of compliance wHhsmte level many
days of the year .
* Construction phase will generate 400 pounds of pamcnistes per day and Crockett
sh
" IW*M»»«'»"& "*•*"" "o "*^" ... __. . .
* Use reclaimed waterrather Wan EastBay Mwtioipal Wfy-Bi^ct waw
> **
" " " ftHiftasMWp
Noima Clerioi, Crockett resident
W« have besn to reguter ooijtaw wi* AQMD regarding foul odots we are forced to
. CcwaryshouMiwtaAi to air pollution buito of Cm^
Cogeneration Ptal is behjg constructed ,,,..,.
. ArUdereleningtolhtoprojeetwasinthe West County TiineiMin Friday, My 15*
. Approach to inviting public comment does not foster (rest in the County or its
relationships with large business interests
Comments did not reflect the sense of urgency or inherent unfairness perceived by
Richmond residents during the Chevron RFP process. Agencies focused on relativdy
minor analytical concerns or jurisdiction^ questions, with the exception ol the MJML)
(which highlighted BACT concerns) and two impacted school distorts Ihe mstncK,
particularly John Swett Unified, advanced many of the ideas introduced by CBb and
other activists during previous negotiations with Shell and Chevron. Fenceline
monitoring, use of bellows valves, and other technologies were suggested by the districts.
Eta.^Siizations were most concerned with the accuracy of DEIR estimates and
analyses and the document's omission of socio-economic indicators pertaining to the
2n^s workforce and project effects on employment. They shared the school districts'
desire to include BACT in project implementation, particularly with respect to tanks,
flanges, pumps, and valves that can contribute to fugitive emissions on-site. Community
options such as the Rodeo Citizens Association and the Crockett *°f<»""*
Association, included members who had been instrumental in negotiating facility siting
or exPrsior; agreements with C&H Sugar, Pacific Refinery, and other firms. Their
comments focused on proposed mitigations similar to those incorporated in previous
agreements, such as "no net increase" in VOC emissions, use of technological
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innovations (i.e., fenceline monitoring, bellows valves), landscaping/ restoration of native
vegetation, and the establishment of a community fund. The proximity of Hillcrest
Elementaiy School was viewed as particularly troublesome. While very few
representatives from Rodeo or Crockett commented on the DEIR, one can find hints of
divergent perspectives on the refinery's impacts and town entitlement to mitigation or
community development funds. These rifts inevitably emerged between the two
unincorporated towns, which at times regarded each other hi less than amiable ways.
Rodeo is where the plant is and Crockett is just downwind of it, adjacent to it. It* s about a mile
away but the topography and the prevalent wind direction means that Crockett is often impacted
more than the town that the plant's located in. Most of Crockett cannot even see the refinery.
There's only a few houses on the hill that can even see it. But they smell it, they feel it...Rodeo
and Crockett have always been rival towns, they're unincorporated, they fight over all sorts of
tilings, money from the County coffers, and on and on. Bayo Vista being the only housing project
in both areas and concentration of low-income people of color is basically an island that Rodeo
and Crockett don't even recognize or want to say even exists so it was a very difficult situation,161
While the Catacarb spill held the potential to magnify differences between the towns, the
circumstances of the ensuing negotiations encouraged residents to present a united front
to Unocal management.
Dispute Resolution. Interviewees suggest that early town meetings immediately
following the spill were instrumental hi aligning residents' sense of what went wrong and
helped them to prioritize community interests. The first such meeting was held by the
Crockett Improvement Association (CIA) one week after the catalyst regeneration unit
was finally shut down,'62 Approximately 80 residents attended the meeting, which also
included a large group of Unocal managers, scientists, and public relations officials, a
representative of Supervisor Jeff Smith's office, and members of the County Health
Department and the AQMD. The September 13 meeting offered the first chance for local
residents to voice their concerns about the accident, less than three weeks before a
scheduled County Planning Commission hearing where the County would be asked by
the Zoning Administrator to certify the FEIR and approve Unocal's land use permit.
That and subsequent meetings163 also gave Unocal and regulatory agencies a chance to
explain the conditions leading to the two week release. Their answers to dozens of
questions, which residents perceived as evasive or contradictory, further encouraged the
towns to mobilize support for opposition to the permit and for good neighbor negotiations,
again promoted by CBE.
The key was several public meetings with the first bunch of managers and science people and
technicians and PR people and Crockett to quote, "explain" that this was really nothing bad for
you, that things were just tine and not to worry, and we were just mad as hell. And it snowballed.
After about two or three meetings, we were about ready to lynch those guys. That's when Unocal
161 Interview of former Organizer, Communities for a Better Environment, June 4,2002, hi Point Richmond.
162 Crockett-Rodeo Coalition (1994). Report on Community Activities Relative to Unocal, November 13,
1994.
163 Other early meetings included a CIA business meeting that drew 100 people, the Planning
Commission's meeting at Hillcrest Elementary School attended by approximately 200 people (October 4),
a County Health Department town meeting attended by approximately 100 people (October 5), a meeting
between Crockett residents and State Assemblyman Bob Campbell (October 14).
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sent in the smoothies. But smoothies with authority, too. They weren't, "gee, I don't know if I
can do this," or "no, that's too much," or "no, we can't do that, there's no scientific proof, why do
we need this?" Or "that's the County's job, why bring this up?" We had some bad answers from
the first bunch.164
There was broad agreement among interviewees that these early meetings also shifted the
response of certain County governing bodies from ambivalence or denial to strong
support for residents' concerns.
The County Supervisor who had authority over Unocal, it was within his district, Jeff Smith, he
calls up the president of Unocal down in southern California shortly after the incident occurs, and
he says I'd like you to come up and address the Board of Supervisors, which had been the
precedent that had been established by other companies in the aftermath of an incident, and if
there's one thing that I have had in my career it has been associated with a number of spectacular
industrial incidents, and basically the President of Unocal said to him why the hell should I come
up there? You can't force me to come before the Board of Supervisors. And it was that antipathy
for the community that I think was reflective of Unocal's demise within the community and
ultimately their economic demise within the United States... So it wasn't that they recognized that
they had done something wrong or that they were trying to assuage the problems that they had
caused, it was because they said OK, we're gonna jettison these resources anyway. When they
sold to Tosco, they basically sold it for the value of the refinery for pennies on the dollar.165
County support for resident concerns was manifest in the following actions by permitting
bodies:
• The County Board of Supervisors voted on a proposal by Jeff Smith and authorized the creation of
a Citizen's Advisory Panel to serve as a refinery oversight committee on September 20;166
• The County Planning Commission delayed action on the reformulated fuels project from October
4 to October 18;167
• The County Planning Commission delayed approval of the project on October 18, and requested
that Unocal and community representatives work toward a settlement agreement; and
• On November 15, the County Planning Commission approved the project and staff-proposed
conditions of approval, with the addition of four conditions, including:
78. Within three months of the effective data of the land use permit and every three months
thereafter, the applicant shall submit to the Zoning Administrator, for review and approval,
a written report outlining the progress of negotiations of a Good Neighbor Agreement.
Good faith negotiations toward a Good Neighbor Agreement, as determined by the Zoning
Administrator, shall be a condition of approval of the land use permit. If the Zoning
Administrator finds that the applicant has not facilitated good faith negotiations, the Zoning
administrator shall notify the applicant of noncompliance with the conditions of approval
and shall commence revocation proceedings for the land use permit.168
164 Interview of Crockett resident, October 31, 2002, via telephone.
165 Interview of CAP facilitator, August 29,2002, via telephone.
166 Crockett-Rodeo Coalition (1994). Activities since the Catacarb release on September 6,1994.
November 13,1994.
167 Contra Costa County Planning Commission (1994). Agenda Item #7, Tuesday, October 18,1994,
Unocal Corporation (Applicant and Owner).
168 Contra Costa County Planning Commission (1994). Agenda Item #6, Tuesday, November 15,1994,
Unocal Corporation (Applicant and Owner); Supra note 162.
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Board of Supervisor actions to encourage investigation and greater scrutiny of the Rodeo
refinery would continue after its approval of Unocal's land use permit.169 Interviewees
agreed that Board assistance came after initial resistance to residents' concerns. Some even
suggested that it was this initial period of denial that led residents to replace Jeff Smith as
their representative on the Board in the next election.
Thus, residents, who with few exceptions were absent from the early stages of the
permitting process, were galvanized by the Catacarb incident, further angered by agency
and corporate response, mobilized by CBE, and encouraged to some degree by the
County Planning Commission to engage Unocal in settlement talks. Interviewees
mentioned four other points of leverage that fueled subsequent community-corporate
negotiations. First, Unocal replaced some of their refinery management, including the
refinery General Manager. New management was quicker to engage Crockett and Rodeo
residents in the aftermath of minor refinery incidents that followed.170 Management also
corresponded regularly with County agencies concerning their activities following the
Catacarb release.171 Residents were able to discuss the Catacarb incident more readily
with the new employees, who were not complicit in the 16-day release. A ninety minute
release of hydrogen sulfide near the Hillcrest Elementary School on September 15 shifted
even more of the community's focus toward the school's proximity to refinery storage
tanks.172 A growing tide of litigation, though unrelated to the demands of residents
negotiating directly with Unocal, crested on September 23 with the announcement of a $1
billion toxic tort claim involving over 1,000 claimants,173 While settlement of the case
for $80 million with what would become 6,000 plaintiffs did not occur until April 1997,
169 For example, following a tank fire at the refinery in June 1995, Supervisor Jeff Smith requested a
"thorough report to the Board of Supervisors by June 27* on the recent Unocal tank fire and related non-
compliance issues from the Health Services Department, County Counsel, and Community Development"
The report was to include "all options to the Board of Supervisors to stop this pattern of repeated violations
at Unocal, including an emergency shutdown of the plant while corrective measures are put in place."
Smith, J. (1995). Recent Incidents at Unocal Refinery in Rodeo, to Board of Supervisors, June 20,1995;
Jeff Smith also joined two other supervisors in passing the "Good Neighbor Ordinance," which required
refineries to meet stringent environmental standards and undergo public hearings before undertaking
maintenance projects valued at more than one million dollars. Hallissy, £. (1996). Strict new rules for
three Bay refineries. San Francisco Chronicle, December 31,1996, p. A1.
170 Three local managers were placed on administrative leave and new managers were brought in from Los
Angeles. For example, Acting General Manager sent a letter to the general public on December 15,1994
regarding a malfunction on a compressor at the unicracker unit that resulted in an emergency shutdown,
flaring, and odor complaints. The letter outlines Unocal's steps following the accident, which occurred the
day before, including notification of their Emergency Response Team, the Rodeo-Hercules Fire
Department, the Crockett-Carquinez Fire Department, and members of the Community Advisory Panel.
171 See Thatcher, H. (1994). Letter to Catherine Kutsuris, Contra Costa County Community Development
Department from Henry Thatcher, Superintendent, Human Resources, Unocal San Francisco Refinery;
Plesh, S. (1994). Letter to Dennis Barry, Contra Costa County Community Development Department from
Stephen Plesh, General Manager, Unocal San Francisco Refinery, October 12,1994; Plesh, S. (1994).
Letter to Planning Commission members from Stephen Plesh, General Manager, Unocal San Francisco
Refinery, November 9,1994.
172 Collins, J. & Lewis, D. (2000). Hydrogen Sulfide: Evaluation of Current California Air Quality
Standards with Respect to Protection of Children, Prepared for California Air Resources Board, September
1,2000.
173 Burason, R. (1994). Residents sue Unocal for SI billion over leaks. Contra Costa Times, September 23,
1994, p. 1.
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the company was encouraged to limit liability by working directly with a comparably
small number of residents through direct negotiation.174 It would also prove cost-
effective to address certain concerns through a GNA, which included many long-range
commitments that could be transferred along with general liability to the Tosco
Corporation upon its purchase of the refinery in November 1996.175 An early community
demand to develop an alternative dispute resolution process for claims related to the
Catacarb release further enhanced the benefits to negotiation perceived by Unocal.
Finally, Unocal's relatively late start in pursuing permits for its reformulated fuels project
meant that it could not afford the kinds of delays that protracted litigation or
administrative processes would require.
Negotiations commenced after a final town meeting (convened by the County Health
Department) on October 5 and the Planning Commission's refusal to grant the land use
permit on October 18. By then, Crockett leaders had organized the Crockett Group,
composed of Douglas Tubb, Howard Adams, Kent Peterson, Alica Anderson, Kasha
Kessler, and Dave Hicks. Three Crockett leaders (Salli Spoon, President of the Chamber
of Commerce, Alica Anderson, President of the Crockett Improvement Association (CIA),
and Jay Gunkelman, member of the CIA) asked outgoing refinery manager, Steve Plesh,
to meet with members of Crockett and Rodeo at the Commission meeting. Their offer
was accepted. A town strategy meeting was then called for Crockett, Rodeo, CBE, and
union representatives for October 27 at the Crockett Community Center. By October 26,
members from Crockett and Rodeo (Lynn Cherry, Leonard Miglio, and Janet Callaghan)
had solicited the support of Supervisor Jeff Smith and discussed their planned
negotiations with Unocal with him. The strategy meeting yielded a list of community
wants, which were presented to Unocal at the first GNA meeting on October 28.
Community concerns included the following:
174 Hallissy, E. (1997). Unocal will settle suits for $80 million. San Francisco Chronicle, April 15,1997, p.
A-l.
175 San Francisco Examiner (1996). Off the ticker. San Francisco Examiner, November 19,1996, p. C-l.
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Table 13. Community Concerns Presented to Unocal.
,&s«eArea
Response and Notification
Environment
Fenceline Monitoring; Community Advisory Panel; Independent Audits; Fire
Department Training; Fire/Bmergency Radio Channels; Data Base/Information
Distribution Center, Community Warning System; Warning Sirens; Crockett-
Carquinez Fire Department; Neighborhood Watch Network
Chlorine; Hydrogen Sulflde; Hydrocarbons; Wa&ewater Discharge and Disclosure;
Emission OtTseis; Worker Training; Flare/Noise Advance Warning; Tank Uak
Monitoring
.jywg-ijfeNB^^ ,
ita&mljiijjgUim *>:• 1: "* ' . r--—<^ ', ' '
Transportation
Construction/Ongoing Traffic Mitigation; Parker Avenue; Anhydrous Ammonia;
Cummingg Skyway Funds; Bicycle/Pedestrian Walkway
Safety
Vec&
Legal
Relocate Hillcrest School; School Protection; Bayo Vista Safety
Agreement to Negotiate; Conflict Resolution Process; Remedies for Breach of
Contract; Refinery Name change; Drop Appeals of Reformulated Fuels Project
Permit
Three early developments should be noted before we consider how these demands were
translated into provisions of the GNA. A small number of issues were effectively
declared "off the table" by Unocal after the third GNA meeting on November 7:
• funding to enhance community-wide neighborhood watch programs
• wastewater discharges and disclosure, particularly methods for reducing selenium discharges at
the refinery
• establishment of a $2 million trust fund to create a Tree Management District for Rodeo and
Crockett to expand landscaping plans
• replacement of Unocal's flare system with "ground-style" facilities
• relocation of Hillcrest Elementary School to an alternative site (Unocal estimated that the cost of
relocation would be roughly $28 million)176
Changing the refinery name from the "San Francisco" to the "Rodeo" Refinery was also
tabled at a later date. Some residents consider the tabling of certain issues to have been a
mistake in judgment early on. For instance, several negotiators considered the location of
Hillcrest Elementary to be the single most important issue at the time. Tabling this issue
was interpreted as either an effort by Unocal to anchor talks around an anticipated figure
below the projected cost of relocation, or to deny any proposal that either lacked a nexus
to the project or amounted to even a symbolic admission of UnocaTs contribution to risks
to human health and safety at the school.
Tabling the above items also delayed community efforts to commit Unocal to a binding
legal agreement to negotiate their concerns to conclusion. Residents suggested this
agreement as a means of facilitating permit approval while the community ironed out its
176 Plesh, S. (1994). Letter to Alica Anderson and Lynn Cherry from Stephen Plesh, General Manager,
Unocal San Francisco Refinery, November 9,1994.
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disagreements with Unocal and produced a final single text agreement. A CBE
representative explains the genesis of the proposed agreement:
Very shortly on, we presented Unocal with an agreement to negotiate which was another thing that
we learned from the unions which is how they start contract negotiations. Which is to sign a
simple agreement saying we agree to bargain in good faith the following issues to resolution. It's
not really groundrules, it's a legally binding pre-agreement, a contract which binds the company to
negotiate in good faith first.177
Unocal reiterated its "commitment to reaching consensus with the Crockett and Rodeo
communities," but did not draft the agreement to negotiate promised at the November 7
meeting.178 Its letter of commitment included Unocal's interpretation of community
concerns that the company would continue to discuss, including CAP formation,
enhanced emergency response, emergency warning concerns at Hillcrest, a fenceline
monitoring pilot program, reduced air emissions, evaluation of methods to reduce use of
extremely hazardous chemicals, responding to Catacarb-related health concerns, making
available alternative dispute resolution to manage Catacarb claims, establishing a
community funding program, helping to fund Cummings Skyway, participating hi
vocational training programs, and implementing a program to enhance local hiring.
A final early development was the formalization of the community's negotiating capacity.
On November 6, co-chairs of the newly formed Crockett-Rodeo Coalition, Alica
Anderson (Crockett) and Lynn Cherry (Rodeo), were elected by community group
volunteers. At a November 9 meeting at the Crockett Community Center, Crockett,
Rodeo, and Bayo Vista residents developed committees and working groups and gave
each tasks designed to clarify the initial negotiating list. By November 13, the
committees had made considerable progress179:
177 Supra note 161.
178 Cherry, L. & Gunkehnan, J. (1994), Letter to Members of the Planning Commission from Lynn Cherry,
Co-Chair, Rodeo and Jay Gunkelman, Assistant Co-Chair, Crockett, November 13,1994.
179 Taken from Crockett-Rodeo Coalition (1994). Reports from Committees in Crockett-Rodeo Coalition
Negotiation Packet, November 13,1994.
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Table 14, Committees Developed by November 13,1994 by Residents.
Committee ' Ji^»feg0ti8tfc» • * I
Legal Issues Agreement to negotiate; funding for legal review of Agreement; Authorization to submit invoices for legal
GNA must be written for signature by representatives of Rodeo, review to Unocal for payment; Provision
Crockett, andltaoeal; Orate a conflict resolution process and of funds to Crockett-Rodeo Coalition for
panel to handle legal claims from Crockett and Rodeo legal review expenses
Emergency Install remote ftnceline monitoring system directly wired to
Response and community fl» departments and other agencies for immediate
Community alerting of releases; designed to ensure maximum level of
Warning public safety and air quality possible through early detection
and control of the release source of any hazardous, aromatic, or
odorous materials; alt data to be available to the public via a
phone link to coatptiters at community libraries and schools;
link sent to AQMD; on-sitc audits by neighbors.
environmentalists, and workers; funding for fin departments to
provide training for emergency response and community safety;
workable evacuation plan practiced regularly; create and
maintain compatible radio channels of the fire/emergency units
at Unocal with such units from County, Crockett, and Rodeo,
with back-up communication in the event of total power loss;
create computerized database with information on the effects of
known hazardous materials associated with refinery
Funding for on-site, paid professional
monitors of community choice on a 24-
hour basis; funding for community odor
and spill patrol teams under the control of
community groups; install surveillance
cameras at major refinery units, flares,
and fencclincs operated and monitored on
a 24-hour bases by community and
government agencies; facilitate the
presence of citizen monitors inside
refinery property to participate in
activation of public notification and
wanting systems in the event of chemical
spills and releases
public safety and health measures; ensure rapid medical
provision and agency employment of procedures following
detection of a release source or contents; establish and fund
operation of community access public health and safety
information distribution center serving Bayo Vista, Crockett,
and Rodeo; contribute remainder of $250,000 previously
committed to the Community Warning System; fund warning
sirens; enhance neighborhood watch programs
58
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,' ,< ',- 1
Vegetation and Mitigation for arect, local sir quality impacts ofpraject through
Parks afe1 quality maintenance zone and implefflentatioa«flong-tefm
that zone; include community representatives mrfiscussions
with agencies toward implementation; provision for safe bicycle
financial commitment to fond tisdsey Museum rescue activities
in the surrounding areas
Commitment to fund vegetation
management district; purchase of the
Hagar tract adjacent to eastern boundary
of refinery for dedieallon to Park District;
planting and maimenance of buffer of
trees in Zone beween Uoocal and
Hiltcrest} ffnane&i and ri^it-ofway
eorattiteBeatlo develop safe path for
bicycle and pedestrian traffic along San
PabM> Avenue Ihroagh tlnocsal property;
ofCtanmfiigs Skyway
l^ a V'*
Vocational Long-term commitmeflt of si^ificant funding for vocational n/a
Training ttafeingati01m.Sw6ttHigh School ($100,000peryear);
assistance with getting John Swett students into apprenticeship
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Environmental
Reduction in risks associated with chlorine and hydrogen
aulfide; reduction in emissions of hydrocarbons and hydrogen
sulfidc; full public disclosure of chemicals contained in
wastewater discharges; offset for emission of paniculate matter
through tree planting; training and competence of workers; all
Unocal Jobs held by union workers, especially maintenance
positions; advance warning when flare noise expected;
underground monitoring equipment for all new tanks
Enclosed loading and unloading facilities
for hazardous materials transfers; reduce
quantities of acutely hazardous materials
used at refinery and frequency of
deliveries and transfers; increase flare gas
recovery systems capacity to prevent
flaring during major upsets; use
cascading ground flares to reduce
emissions; vent all pressure relief valves
into containment; retrofit with bellows
valves on all services 2 inches or less;
install bellows valves on all new project
services; utilize cone roof design; drop
permit data; fund independent audit for
pollution prevention; meet selenium
discharge limits on a per barrel basis
By this time, a small group of predominantly Crockett residents had also formed the
Shoreline Environmental Alliance (SEA), which focused on environmental health and
was the strongest proponent of Hillcrest school relocation. SEA members advanced their
own negotiation proposal that focused on medical testing and treatment, health surveys,
pollution monitoring, lead testing, additive and synergistic effects of exposure to
Catacarb to those already with elevated blood lead levels, and medical staff training for
treatment of chemical exposure. Interestingly, the group also focused on relieving the
burdens borne by residents of Bayo Vista, the housing authority located along the
refinery's fenceline in Rodeo. Elements of their negotiation proposal that encompassed
the concerns of Bayo Vista included:
• Funding for immediate and continued local health care and concerns for low-income citizens
exposed to chemical release. Bayo Vista area as defined by its physical relationship to the refinery
and its shared facilities increase vulnerability to chemical exposure. The citizens living or
utilizing facilities in this area generally have no or limited health care programs to respond to their
health needs.
• Include Bayo Vista's Tiny Tot School in monitor installation program. Provide report and/or
explanation of Federal Government participation for health, safety, testing, and other issues related
to exposure to chemical releases for community residents living in or frequenting this area.
• An endorsement of Stephen Batchelder's Tree Maintenance District proposal that would
absorb .03-.2 pounds of particulates per tree per day (the project would add 165 Ibs/day of
paniculate emissions, requiring 1,650 trees to absorb paniculate matter from the new project).
Bayo Vista residents continue to express concerns over particulates.180
180 Shoreline Environmental Alliance (1994). Health Sub-Committee Health Issues Negotiation Proposal,
November 11,1994.
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The committee structure described above was viewed as helpful to residents for a number
of reasons. First, they solidified a number of important issue areas that were initially
presented to Unocal en masse. By allowing small groups of highly dedicated and
qualified people (for instance, the health committee included a chemistry Ph.D.; the
vegetation and parks committee included an arborist) to further explore these issues, the
committee structure made it more difficult for Unocal to ignore or postpone consideration
of certain proposals. Interviewees credit the committees for ensuring that most of their
initial demands were accounted for in the final agreement, even though residents, who in
some cases had just completed ten years' worth of negotiations with other companies,
gradually dropped out of the process. Committees also met on separate occasions with
Unocal, allowing for more focused discussions, and reported back to the broader
negotiating committee, chaired jointly by Crockett and Rodeo residents. At the same
time, the committees did provide their own set of challenges. Representation on the
committees was inherently lopsided due to self-selection. This meant that after mid-
November 1994, access to decision-making and the ability of certain affected areas to
influence policy was limited. As shown below, the committees, by virtue of self-
selection, did not encourage equal consideration of the issues by representatives of each
community. Finally, the presence of committees, and their direct negotiations with
Unocal, constituted an implicit concession on the part of the community: there was a
limit to which any particular issue could be addressed without crowding out the interests
of other committees. For example, certain committees were adamant that demands for
school relocation be dropped so as not to affect other concerns. Similarly, efforts to
commit Unocal to fund all or part of the Cummings Skyway road extension were viewed
by some as a misuse of money that should have been appropriated for school relocation
or other projects. Figure 5 provides a sketch of the committees, their membership, and
the frequency with which they met with Unocal before development of an initial draft of
theGNA.181
181 Taken from Good Neighbor Agreement between Crockett-Rodeo Coalition, Shoreline Environmental
Alliance, Citizens for a Better Environment, and the Unocal Corporation Attachment B, April 7,1995;
Crockett-Rodeo Coalition (1994). Report on Community Activities Relative to Unocal, November 13,
1994; Unocal Corporation (1994). Unocal Reformulated Gasoline Project Summary of Community
Meetings, Presented to the Contra Costa County Board of Supervisors, December 20,1994.
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Figure 5. Negotiating Committee Membership/Meetings, November-December, 1994.
Emergency
Response/
Warning
SEA (2)
CIA (2)
CFD(l)
RFD(1)
BayoVistaO)
Crockett (1)
Audit
SEA (2)
CIA(l)
CBE (1)
Vegetation
and Paries
CIA (2)
RCA (1)
School Safety
SEA (3)
RCA (1)
JSUSD (1)
Vocational
SEA(l)
RCA(l)
JSUSD (1)
Tormey(l)
Fenceline
Monitoring
CBE (2)
SEA (1)
CIA (I)
RCA (1)
\
Local Hiring
Tormey (2)
RCA (1)
Transportation
Crockett (1)
Rodeo(l)
Financial
Distribution
SEA (2)
CIA (2)
RCA (2)
BayoVista(I)
Crockett (1)
Rodeo (1)
Tonney (1)
4-*
Crockett-Rodeo Coalition/
Negotiating Committee
Composed of chairs/co-chairs from
Crockett, Rodeo, SEA, and CBE
"~\ \\ \
loV "\. \\\\
SEA - Shoreline Environmental Alliance
CIA - Crockett Impovement Association
RCA - Rodeo Citizen's Alliance
CFD/RFD - Crockett-Rodeo Fire Department
CBE - Citizens for a Better Environment
JSUSD - John Swett Unified School District
Does not include Unocal meetings with other individuals/agencies or
informal meetings that have not been documented
14
Unocal Negotiating Team
Acting General Manager
Legal Counsel
Public Relations
Environmental Professionals
The communities and Unocal made substantial progress on emergency response, health,
and vegetation/parks issues within smaller meetings with committee representatives.182
Other issues, particularly financial allotments, legal issues, audits, and school safety,
were covered in the 14 broader GNA negotiations. Some of these issues were of concern
to many or all committees, such as financial distribution. Others either elicited
concessions early on by Unocal with little remaining bargaining room (e.g.,
environmental audits) or they were explored in part by Unocal through meetings with
individuals that were not represented by the committees (for instance, school safety was
explored through direct meetings with school officials and shelter-in-place drills run with
the assistance of Unocal; the company further agreed by mid-October to contribute
182 For example, a meeting between Unocal representatives and the Public Safety Committee of the CIA
yielded proposals such as the use of a network of fax machines in critical locations in the community, to
allow Unocal to disseminate information "regardless of the nature of the event or whether County systems
(CAN, etc.) are activated." Habinski, H. (1994). Notes of the Meeting Between Unocal Representatives
and the Public Safety Committee of the Crockett Improvement Association, November 2,1994.
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$378,000 to Hillcrest for weather stripping, door, and window improvements). It should
also be noted that many elements of the GNA required a separate series of meetings after
the initial agreement was reached in late December 1994. These included fenceline
monitoring, medical treatment, health studies, and legal issues pertaining to the final draft
of the document.
Unocal responded to community demands with a series of proposals that were either
linked to some of the issues raised by committees, offered directly to the Community
Development Department, or agreed to with the Rodeo Municipal Advisory Council
(RMAC), a quasi-governmental body whose members were appointed by tiie Board of
Supervisors.
September21,1994; Memorandum of Understanding with RMAC183
• Locate Tank 109 further from Hillcrest School
• Improve emergency notification plan to Hillcrest and St. Patrick's Schools and Bayo
Vista
• Provide Rodeo with quarterly newsletters information community of project status
• Conduct two shelter in place workshops and distribute kits by June 1995
• Work with Rodeo licensed day care centers to request notification from Community
Warning System; provide for any required access material and installation
• Continue participation in the Refinery/Petrochemical mutual aid system
• Appear before the RMAC quarterly during project construction
• Contribute $50,000 in January 1995 and $50,000 in January 1996 for community
improvements in Rodeo, selected by RMAC
• Advise RMAC of future hiring plans
* Work with Contra Costa building trades to implement hiring outreach for apprentices
from Crockett, Rodeo
• Work with County to develop a community advisory program
• Work with East Bay Regional Park District and State Lands Commission to develop bike
and walking path along San Pablo Avenue
• Contribute $25,000 per year for three years to John Swett Unified School District for
specific student programs
• Contribute $378,000 for facilities improvement project at Hillcrest Elementary School
October 12,1994: Activities Summarized to Community Development Department184
• Reviewing notification procedures with regulatory agencies
• Will continue to work in conjunction with County's expanded emergency notification
network
• Forming a Community Advisory Panel with representatives from Crockett, Rodeo, and
Tormey
• About to begin educational program with schools, senior centers, day care facilities, and
community groups on how to respond to emergency releases
• Making a contribution to Hillcrest (agreed to with RMAC)
183 Memorandum of Understanding Between the Rodeo Municipal Advisory Council and Unocal San
Francisco Refinery, September 21,1994.
184 Plesh, S. (1994). Letter to Dennis Barry, Contra Costa County Community Development Department
from Stephen Plesh, General Manager, Unocal San Francisco Refinery, October 12,1994.
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October 28,1994: Activities Summarized to Community Development Department185
• Is investigating all property damage claims; efforts to clean cars, windows, and personal
property will be completed soon
• Contribution has been presented to Hillcrest (October 20)
• Will install temporary on-site monitor at Hillcrest this week to allow school to be aware
of airborne release
• Working with Community Awareness and Emergency Response (CAER) organization to
educate community on sheltering in place and other ways of protecting themselves in the
event of a release; developing videos to be mailed to each neighboring household
• Signed contract with CAER for installation of new community warning system,
scheduled for completion in December 1995; would be capable of linking directly to all
major local TV, radio, and cable stations, activating sirens audible to residents within one
mile of each major industrial facility in County, including Unocal, initiating the current
Community Alert Network, a computerized telephone system which delivers messages to
businesses and residents during an emergency, and connecting to digital highway signs
planned by State Department of Transportation.
Novembers, 1994186
• Opened a temporary medical clinic in Crockett staffed by independent medical expert
specializing in toxicology and environmental medicine
• Initiated a health risk assessment working group including representatives from the
community and risk assessment experts selected by the community and Unocal
November 8,1994: Unocal presents its Response to Community Concerns187
• Will work to form a CAP, the function and role of which will be defined in a separate
agreement
• Will provide status reports on the project to the CAP
• Will request that land use permit conditions apply to Crockett as well as Rodeo Fire
Department emergency response
• Will work with Community Awareness and Emergency Response organization to
implement a new Community Warning System; has committed $250,000 toward
implementation of the system
• Will implement shelter-in-place education plan including two workshops and distribution
of videos to 6,000 residents
• Will provide quarterly newsletters on project
• Will continue participation in Refinery/Petrochemical mutual aid system
• Will work with CAP to enhance emergency notification procedures
• Will continue to upgrade internal communications systems, including purchasing cellular
phones, pagers, and other equipment
• Will develop system to provide timely notification to emergency rooms, health care
providers, and pharmacies in the event of a release
• Will install experimental remote sensor fenceline monitor pilot program at refinery
• Will prepare report on pilot program and share with CAP and community groups
• Will install a set number of bellows valves on project facilities or by replacement of
existing valves prior to March 1,1996. Will replace other existing valves by 1998
• Will preferentially purchase local emission offsets
• Will install a permanent air monitoring device at Hillcrest School by end of November
* Will phase out anhydrous ammonia at refinery (replaced with aqueous ammonia)
183 Thatcher, H. (1994). Letter to Catherine Kutsuris, Contra Costa County Community Development
Department from Henry Thatcher, Superintendent, Human Resources, Unocal San Francisco Refinery.
186 Handle, A. (1994). Letter to Board of Supervisors from Allen Randle, Acting General Manager, Unocal
Petroleum Products and Chemicals Division, December 5,1994.
187 Unocal Corporation (1994). Unocal's Response to Community Concerns, November 8,1994.
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Will conduct human health risk assessment through a working group; will present results
to include monitoring data and conclusions
Will continue to have medical expert specializing in toxicology and environmental
medicine available to residents to address health concerns related to recent releases
Will agree to annual contributions to Rodeo and Crockett for general improvements
Will work with Supervisors to develop a means of allowing Unocal to participate in
partial funding of Cummings Skyway extension
Has donated $378,000 to Hillcrest School
Will work with East Bay Regional Park District and State Lands Commission to develop
a bike and walking path along San Pablo Avenue through refinery
Will advise CAP of future hiring programs
Will work with building trades to implement a hiring outreach program for apprentices
Will contribute $25,000 per year for three years to John Swett Unified School District
Will develop an alternative dispute resolution process for claims related to Catacarb
release
November 11,1994188
Letter to Community Chairs regarding further proposals
• Willing to hire independent auditor selected jointly by the parties to perform an
independent audit of the refinery's emergency response plan, notification procedures, and
safety management program; results would be made public
• Willing to install 80 bellows valves between now and March 1,1996; another SO would
be installed by January 1,1997; assuming they meet performance standards, another 50
would be retro-fit by January 1,1999
• Willing to contribute $100,000 annually to each of die communities for 15 years;
allocation to be determined by committees comprised of community members and
Unocal representatives
UnocaTs agreement with RMAC was not the first example of residents seeking to pursue
their demands prior to the establishment of a more broad-based process.
Negotiation started before anything was organized. As usual, a few people get together, make
demands on Unocal, people from the community, but not an organization, not an organized effort.
Just the startup. People begin by making demands, and we even heard that Unocal had agreed to
such and so before there was any real organization. And that's, it's that point I stepped in and
helped organize the effort into a working entity. At which point, the key person who had jumped
in at the beginning vanished, and that was important to me also. There might have teen some
early statement about paying money to the community. This is a person in the pocket of one of
the county supervisors who did not represent us and we had to fight to get control for the
community away from outside supervisors.189
Careful consideration of concessions that followed broader organization reveals that
some of the most innovative and potentially cost-effective proposals linked to community
warning and emergency response were either tabled or ignored. Recall that the
Emergency Response and Community Warning Committee had produced the following
proposals in order to assist the refinery in avoiding future Catacarb-type incidents:
188 Plesh, S. (1994). Letter to Alica Anderson and Lynn Cherry from Stephen Plesh, General Manager,
Unocal San Francisco Refinery, November 11,1994.
189 Interview of Crockett Resident, November 11,2002, via telephone.
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On-site, paid professional monitors of community choice at all times
Funding for community odor and spill patrol teams under the control of community groups
Surveillance cameras at major refinery units, flares, and fencelines operated and monitored at all
times by community and government representatives
Citizen monitors inside the refinery that would participate in activation of public notification and
warning systems during spills and releases
Fenceline monitors directly wired to community fire departments and other agencies for
immediate alerting of releases, designed to ensure early detection and control of release source, all
data available to public
Funding for fire departments to design and provide training for emergency response
Workable evacuation plan practiced regularly
Create and maintain compatible radio channels of fire/emergency units at Unocal with such units
from County, Crockett, and Rodeo
Computerized database with information on effects of known hazardous materials and
recommended medical treatments
Ensure rapid medical provision and agency employment of recommended procedures following
release detection
Fund operation of a community access public health and safety information distribution center
serving communities
Contribute remainder of $250,000 previously committed to Community Warning System
Fund permanent installation and maintenance of warning systems
Funding to enhance community-wide neighborhood watch programs190
Such proposals, which sought to alter roles and responsibilities, transfer some of the
existing monitoring discretion from Unocal and agencies to local residents, and
encourage the co-production of environmental safety by residents and the state, were
"chipped away" by Unocal negotiators.191 Elements of community-corporate agreement,
that appeared first in a 17-page GNA (signed on December 20 pending legal review),
often represented something "close to the bottom line" for many of the negotiating
committees.192 In the case of emergency response and warning, Unocal agreed only to
fund a database of health effect information, participate in a working group to develop an
information and notification system, and to fund purchase of a siren as part of the existing
Community Warning System. A remote sensing air monitoring testing program was
agreed to, as well as one independent audit of the refinery's emergency notification
procedures. The School Safety Committee offered similarly comprehensive proposals to
ensure effective emergency planning at local schools and to facilitate school relocation
through $400,000 per year donations to fund two new schools in Crockett and Rodeo.
The December version of the GNA only promises a permanent monitoring station at
Hillcrest, further education and training, access to property for a bus turnaround at
Hillcrest, and a study to identify risks "attributable" to Unocal vis-a-vis Hillcrest School
(and funds not to exceed $500,000 to perform mitigations should risks be found
attributable). Similar examples of positional bargaining were noted in other committees
as well.
190 Emergency Response and Community Warning Committee (1994). Emergency Response and
Community Warning Issues for Negotiation, November 13,1994.
191 Interview of Tormey Resident, October 24,2002, via telephone.
192 Interivew of former Organizer, Citizens for a Better Environment, June 4,2002, in Point Richmond.
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The most interesting dynamic to emerge following the creation of committees and
solidification of their demands concerned the source of proposals. As evidenced by
Table 14, residents, many who were suffering from the effects of Catacarb exposure,
spent much of their time crafting proposals and investigating alternatives:
We met endlessly. And we designed things because of course they were clueless. We called
phone companies, we called places to find out what to do about some sort of calling system and
also to get information from the County. For instance, one of the tilings we proposed was that
they would mail to every person in Crockett every six months or a year or less, a postcard and ask
them if they were chemically sensitive or if they wanted notification of what would be considered
kind of a "level two" incident which is not the highest but kind of a middle incident And we did
this because my wife is very chemically sensitive and she has allergies and when they have a
release, if affects her more than others and many other people felt the same way so we filled out
all these forms and we figured out a way that Unocal could actually call with an automated system
so mat the County wouldn't have to wait until doomsday, because they, literally people could be
dying by the thousands and the County could say well, there doesn't seem to be scientific evidence,
and we're not sure there's any cause and we don't know where the source of this is, even though
of course there are now detectors all over the place, they still won't commit to all of that. So we
were going to have Unocal determine if it was their release, with these new infrared detectors to
notify us if it was this kind of middle-range release.193
While residents were clearly adept at creating options for meeting their most pressing
concerns, their proposals were often rebuffed by Unocal. When this happened,
community representatives sought additional resources from the company in return for
their reluctance to address certain issues or proposals. A series of trades along these lines
ensued. For example, Unocal was opposed to CBE's participation in annual audits that
the company traditionally conducted at the facility. CBE agreed to drop its demand for
inclusion in exchange for an increase in funding for the communities. Interviewees agree
that there was often pressure to "take some of the environmental and safety
improvements away" in exchange for more money. Unfortunately, some of the residents
admit that they were not as capable of estimating dollar values for then- proposals as they
were of envisioning them. Thus, it proved difficult at times to gauge whether the trades
were fair from the community's standpoint. But residents were able to help Unocal
negotiators "sell" certain ideas to upper management, including the formation of a Good
Neighbor Clinic, which was agreed to relatively early on. A final difficulty in reaching
agreement concerned Unocal's propensity to replace proposals that directly affected
problems that had been identified vnfaprocesses for considering resident concerns. The
December and final (April) versions of the GNA include outlines for studies of health
risk, assessment of school risk attributability, reports on the viability of fenceline
monitoring, and reports on emergency response audits. Much of the work that followed
the agreement in principle served to establish protocols for carrying out these
investigations. Tlie implementation phase of the GNA is riddled with moments of
impasse before, during, and following issuance of these reports.
Following the Planning Commission's approval of the land use permit, appeals were
made to the Board of Supervisors by the United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry, SEA, and Unocal. Interestingly,
193
Interview of Crockett Resident, October 31,2002, via telephone.
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the union's appeal claimed that the EIR did not take into account UnocaTs management
practices which could lead to further releases.194 SEA also focused on issues of
emergency response, citing inadequate protection for chemically sensitive individuals and
calling for any fenceline monitoring system to offer direct and immediate public access to
data.1 5 An agreement in principle (the first agreed-to version of the GNA) was reached
on December 20,1994 Just before the Board was to consider the appeals, which were
subsequently dropped. This unprecedented agreement shocked some of the community
representatives in terms of the financial resources involved:
Table 15. Good Neighbor Agreement (in Principle) Financial Commitments.
196
Health Risk Assessment
**#W*Nr^""-'^
Epidemiologtcal Study
Health Databflse
County HAZMAT Van
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activities. When viewed as a percentage of total commitment, financial commitments
suggest an interesting set of priorities that emerged from committee-driven proposals,
Unocal acceptance or denial of each, and subsequent trades:
$4,530,000 (30.3%)*
3,000,000(20.1%)++
2,500,000(16.7%)*
1,500,000(10.0%)++
1,000,000(6.7%)*
670,000 (4.5%)+
590,000(3.9%)+
488,000(3.3%)
300,000 (2.0%)*
120,000 (0.8%)
100,000(0.7%)*
90,000 (0.6%)+
50,000 (0.3%)
10,000(0.1%)
Transportation improvements:
Financial contributions to four nearby communities:
Air monitoring:
John Swett vocational training;
Anhydrous ammonia phase-out:
Tree planting:
Hillcrest school improvements:
Health risk/epidemiological study:
Reduce emissions:
Medical clinic:
Bike path:
Emergency preparedness/community warning:
Safety audit:
Miscellaneous:
* - condition of permit approval
++ = substantial improvement over permit condition
+ «• improvement over permit condition
The committee structure that negotiated the GNA, composed of members of existing
citizen and civic organizations, encouraged a relatively high level of financial support to
be allocated annually by the Crockett Foundation and the Rodeo Municipal Advisory
Council. Some proposals, by virtue of their "lumpiness" and strong support across the
community and with the County, received a disproportionate share of Unocal's allocation.
Two of the Planning Commission's conditions of approval were for Unocal to provide for
a fenceline monitor (condition 76), and for the company to contribute "$4,500,000 or an
alternate amount determined by the Board of Supervisors for the construction of the
Cummings Skyway extension" (condition 77), A resident explains how these
conditions were added to the Commission's permit approval:
We shared documents, draft documents for instance. We had a draft of the GNA that we gave to
the Commission and asked them to put specific language into the permit from our document, to
legalize under the permit tilings that we were getting Unocal to agree with. In some cases they did
that, took language even verbatim. In other cases, they did not. But there was a parallel process
and it worked to our advantage.198
In lieu of school relocation, Hillcrest received 3.9% of the allotted sum for necessary
improvements. Again, community representatives had been able to convince the
Planning Commission to require a $378,000 contribution to Hillcrest for structural
improvements (condition 75). Environmental concerns were translated into promised
studies with limited consideration of how results would be interpreted or used to
influence refinery operations. Emissions concerns received 2% of the total (or 6.5%
197 Contra Costa County (1994). Community Development Department Approved Permit, Conditions of
Approval for Land Use Permit #2038-93 (Unocal Corporation Reformulated Gasoline Project), December
20, 1994.
198 Interview of Crockett resident, November 11,1994, via telephone.
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when participate matter reductions from tree planting are factored in), predominantly for
the replacement of valves to reduce fugitive emissions. Some of these valve
replacements may have been required by the AQMD during its subsequent permitting
process for UnocaTs RGP (BACT for reformulated fuels projects included specifications
for valve types).199 They were also added to the County's conditions of approval (#79).
Most disappointing to several representatives was the lack of commitment to "preventing
future Catacarb's." Less than one percent of the GNA was dedicated to such efforts. The
inventiveness of committee proposals, urgency of local residents, and number of
meetings with Unocal management and experts were not sufficient to ensure adequate
representation of emergency preparedness in the final agreement. Some argued that the
two largest one-time expenditures, the Cummings Skyway extension and fenceline
monitoring, shared a nexus to emergency response. Cummings Skyway would be built
just in time for the destruction of Crockett's freeway ramps due to bridge construction. It
therefore allowed for improved evacuation of the area. Fenceline monitoring was to
contribute to these efforts through notification of offsite impacts of refinery releases. We
will see that implementation severely limited its effectiveness in that regard.
Implementation. The following is an overview of primary activities that followed party
approval of the Initial GNA in December, 1994.
Legal Review. Both sides relied on attorneys and negotiating committee members to
scrutinize the initial document and provide recommendations for changes to its language.
For community representatives, this process began prior to the initial GNA and continued
until a final draft was signed on April 7,1995. Three primary issues for residents were (1)
document specificity and use of "dates certain," (2) Section ten (legal issues), (3) and the
status of signatories to the agreement. Examples of specificity added to the document
over tune included location and timing, direct recipients of certain commitments,
prohibited expenditures, who should provide oversight, and enforcement mechanisms
(e.g., which portions of the agreement are valid land use conditions requiring appeal
through County administrative procedures). A second concern involved the GNA's
breach clause in section ten, which initially entitled Unocal to damages (to be determined
through either court action or disputes submitted to the Zoning Administrator).200
Residents tried to get the section's language changed to eliminate money damages as a
remedy or to assure that money damages would be deducted from Unocal's financial
responsibility and not taken from their organizations. An alternative was to limit both
sides to "specific performance" of the contract as a remedy.201 The final document
includes several clauses which sought to address the above concerns:
Section X(l )e. No party shall be liable in monetary damages for any breach of this Agreement.
The sole remedy for any breach shall be an action for specific performance, and/or injunctive or
declaratory relief to enforce the Agreement. No payment of attorney's fees shall be allowed
pursuant to court order.
199 Bay Area Air Quality Management District (1993). Best Available Control Technology Guidelines for
Fugitive Emission Sources for Refinery Clean Fuels Projects, April 16,1993.
200 Rarao, A. (1994), Letter to Ruth Blakeney, Shoreline Environmental Alliance and Denny Larson,
Citizens for a Better Environment from Alan Ramo, December 20,1994.
201
Ibid.
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Section X(2). If a final determination is made pursuant to paragraph 1 above that funds have
been expended for an improper purpose as specified in Section VIII, paragraphs 4 and 5, Unocal
shall be entitled to withhold future payments to the entity which has made the improper
expenditure in an amount equal to the improper expenditure.
Section X(6). If any portion of the Good Neighbor Agreement is deemed invalid, the other
portions shall remain in effect; if any portion is breached or declared illegal, the other portions
shall remain enforceable and legal, except as specifically described herein.202
These clauses limited community organizational liability while ensuring that GNA
implementation would continue even in the event of a breach of one or more sections.
The final version of the legal section governed disputes according to a process that
included notification of all parties, "good faith" discussions, and the submittal of a
dispute for mediation by a qualified person. Court actions were reserved for situations
where the above means of dispute resolution were exhausted. Equally important to issues
of breach was the legal status of signatory organizations for purposes of GNA
enforceability. Attorneys commenting for the community suggested that legally
recognized entities should be involved for purposes of enforcement. Residents were
warned that should they not be part of a legally recognized entity, they 'Svould have to
rely upon the other community entity's continued viability and willingness to enforce
community interests."203 In addition, attorneys questioned whether the Rodeo/Crockett
Coalition was an operational organization, and suggested that ongoing organizations such
as the RCA and CIA be substituted.204 In the end, the Coalition, SEA, CBE, and Unocal
were the signatories to the GNA, even though the two local groups had yet to obtain
501(c)3 status as formal non-profit organizations.
Study Design and Results. A common difficulty emerged during implementation of
studies of health status, risks associated with the Catacarb release, and school safety,
attributable to errors of omission in the design of the agreement:
We're going through various drafts and watching the language fine-tuned and checking to see if
something doesn't vanish without our approval and so on and we're getting tired. We really want
to get to the end of mis, get the document signed. And then in a few months or a year or two, we
realize mat there are loopholes or that we just don't have all of the language that we needed. And
it's true in the GNA where one type of language that we don't have is definitions. What does a
word mean? And that was particularly bad when it came to the school issue of responsibility. We
had something in the GNA about analyzing the grammar school building for its safety of the
students, the defects in the building, windows, or whatever. And something about an analysis, a
potential risk analysis. Something like that. We did not define this, exactly what we meant and
exactly what was required in language mat would allow us to stay in command of the situation.
And they were able to go through the motions of offsite consequence analysis and bring something
forward from some consultant and then to have Unocal say well, but we don't agree, we don't
202 Good Neighbor Agreement between Crockett-Rodeo Coalition, Shoreline Environmental Alliance,
Citizens for a Better Environment, and the Unocal Corporation, April 7,1995, Section 10.
203 Montandon, A. (1995). Memorandum to Shoreline Environmental Alliance from Art Moritandon,
December 19,1995.
204 Weinberger, M. (1995). Memorandum to Lynn Cherry, RCA and Denny Larson, CBE from Mark
Weinberger, January 27,1995.
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accept this, we're going to have another one done, and string it out, and in the end it went
nowhere,203
By mid-February 1995, Unocal began to contract with researchers at San Francisco State
University for the completion of an epidemiological study of residents exposed to
Catacarb. Residents were asked to attend a community forum in late February to hear
from a panel of scientists and health professionals about the study.207 The principle
investigator, Rosemarie Bowler, as well as community representatives, were confronted
with numerous obstacles in carrying out their work. First, the County Health Services
Department sought to intervene early in the process, an effort which was rebuked by
community negotiators. 8 Second, the County gave little assistance to the researcher or
residents in terms of offering comments on study instruments or information on the
makeup of Catacarb.209 Unocal also hired a second researcher, Paul Fonteyn, to complete
additional statistical analysis of the Bowler study, to determine "where there is a risk of
over-interpretation, perform advanced statistical analysis of correlation structure of the
data and determine if substantial internal correlation of the data is present."210 The report
was made available in draft in January 1996. Controlling for household cluster effects,
gender, education, and race, the study found an increased reporting of symptoms among
those exposed to Catacarb, including headaches, respiratory, visual, gastrointestinal, and
dermatologic problems. The study compared Crockett with a control community and did
not consider Rodeo or Bayo Vista. The report found that adjusted odds ratios (or relative
risk of developing a given condition compared to those who are not exposed to a given
item) were elevated for people
Reporting sticky brown deposits on their cars (odds ratio of 3.0 for dermatological, headache, and
chemical sensitivity symptoms)
Reporting sticky brown deposits on their house (significantly higher visual, cardiac,
dermatological, headache, chemical sensitivity, and gasto-intestinal symptoms)
Reporting having gardened during the height of the release (significantly higher dermatologic and
visual symptoms, possibly related to direct contact with Catacarb, which may have produced
irritation of the mucous membranes of the eyes and skin)
Reporting additional time spent outdoors during Labor Day weekend (hi five hour increments)
(significantly higher visual, dermatological, and respiratory symptoms)211
203 Interview of Crockett resident, November 11,2002, via telephone.
206 Randle, A. (1995). Letter to Dr. Paul Fonteyn, Associate Vice President for Research, San Francisco
State University from Allen Randle, Acting General Manager, Unocal San Francisco Refinery, February 9,
1995.
207 Crockett Health Committee (1995). Announcement to Crockett, Rodeo, and Tormey residents regarding
Community Forum, Thursday, February 23,1995.
208 Shoreline Environmental Alliance (1995). Letter to Wendel Brunner, M.D., Contra Costa County
Health Services Department from SEA, February 2,1995.
209 Bowler, R. (1995). Memorandum to Dr. Wendel Brunner from Dr. Rosemary Bowler, February 9,1995.
210 Wilkes, J. (1995). Letter to Dr. Paul Fonteyn, Associate Vice President for Research, San Francisco
State University from Jeffrey Wilkes, General Manager, Unocal San Francisco Refinery, June 12,1995.
211 Bowler, R. (1996). Health Study of a Community Exposed to a Chemical Spill. San Francisco State
University, March 29,1996.
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These effects were found to be consistent with the effects of known constituents of
Catacarb, including boron, vanadium, diethanolamine, and N-nitrosoethanolamine.
Bowler's study would later be characterized by residents as 'the only study that reflects
injury to the community."212
The human health risk assessment, carried out by Montgomery Watson, was far more
problematic. At first, a working group composed of representatives from the California
Environmental Protection Agency, California Department of Human Services, County
Department of Health, Unocal management, and community representatives and their
consultant, met regularly and produced numerous suggestions for improvements of the
risk assessment. A third iteration of the assessment was issued by the consulting firm in
November 1995. The community's technical representative characterized the report as
"poorly written, extremely difficult to understand, and makes no attempt to convey its
finding in words or terms which could possibly be understood by the affected
community."213 More importantly, community representatives indicated that the report
made use of air dispersion modeling that had not been approved or reviewed by the
working group.214 Residents also found that the report ignored evidence on the amount
of Catacarb that had been deposited on surfaces in the community during the release.215
Similar complaints were raised by state agencies represented on the working group. The
State Department of Health Services found that changes in methodology, made without
working group input, served to reduce health risks calculated for short-term exposure to
Catacarb "by over an order of magnitude."216 The agency discussed elements of
uncertainty that meant that "definitive answers to the community regarding the presence
or absence of health effects due to the Catacarb release cannot be inferred."217 These
included the modeling approach used to estimate how Catacarb released by the facility
was dispersed through the air and deposited in various concentrations throughout the
community. Further conditions of uncertainty included a lack of lexicological data for
Catacarb, leading researchers to substitute related chemicals and assume that effects of
constituent chemicals would be additive (rather than greater than additive, or synergistic),
and the extrapolation of chemical toxicity data from laboratory animals to human beings
to estimate health risks.
Community representatives spent countless hours commenting on and offering
corrections to various versions of the risk assessment. In the end, the study failed to
emerge from joint community-corporate investigation of modeling and statistical
212 Health Committee (1996). Memorandum to the Steering Committee regarding the Shoreline
Environmental Alliance, February 20,1996.
213 Greenberg, A. (1995). Letter to Dr. Susan Mearns, Montgomery Watson from Dr. Alvin Greenberg,
Community Technical Representative to the Work Group regarding Unocal Catacarb release: Final health
risk assessment, December 15,1995.
214 Adams, H. (1996). Letter to Jeffrey Wilkes, General Manager, Unocal Corporation from Howard
Adams regarding Catacarb Health Risk Assessment, February 1,1996; Montgomery Watson (1995). Letter
to Working Group Members from Montgomery Watson, November 17,1995.
215 Adams, H. (1995). Catacarb Health Risk Assessment Comments, November 11,1995.
216 Armstrong, M., McNeel, S., & Seidel, S. (1995). Letter to Dr. Susan Mearns, Montgomery Watson
from Michael Armstrong, Research Scientist, Sandra McNeel, Research Scientist, and Sharon Seidel, Ph.D.,
IAI lexicologist for the State Department of Health Services, December 11,1995.
217 Ibid.
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methodologies, and of assumptions underlying various exposure estimates. This meant
that the only study that could provide chemical analysis needed for proper symptom
treatment guidance had to be disavowed by the working group and member agencies.
Delays in finishing the assessment, which the GNA required to be completed by March
1995, meant that any toxicological data in the report could not be used by Good Neighbor
Clinic physicians in diagnosing and treating their patients.218
Similarly, an assessment of school risk attributability, described below, yielded findings
that were disavowed by Unocal and did not lead to recommended relocation or structural
changes at area schools. Deviations from what were supposed to be iterative processes of
data gathering, assumption testing, and agreement over interpretation of findings meant
that little to no substantive changes were made to refinery operations or medical
monitoring because of the above study findings.
Fenceline Monitoring/Emergency Preparedness. Equally important to area residents,
who sought medical treatment and an understanding of the effects of Catacarb on their
health, were efforts to prevent "future Catacarbs." The primary means of meeting this
objective was to win Planning Commission support for a fenceline monitoring system
that could keep track of toxic air pollutants as they crossed refinery property. Local
proponents of this technology included Andy Mechling, a camera specialist who
developed unparalleled expertise in available monitoring models and their capabilities.
CBE provided a great deal of support as well for inclusion of such a system in the GNA
and permit, efforts that had been less than successful in previous attempts with Shell Oil
and Chevron. The original signatory organizations entered into a memorandum of
understanding (MOU) in November 1996 regarding installation of a fenceline monitoring
system.219 This agreement followed numerous meetings with Unocal during which such
issues as detection time (short detection time was called for so that the equipment could
be sensitive to "hazardous releases of emergency nature"), best available technology, and
data sharing were discussed. Community representatives claimed that Unocal was out of
compliance with each of these issues during the initial pilot testing period, called for in
the company's land use permit:
By January 31,1995, the applicant shall submit to the Zoning Administrator for review and
approval a monitoring test program for a fenceline monitoring system as specified below. The
system, if approved by the Zoning Administrator, shall be in place and operating by November 1,
1996, and shall fully incorporate the best available technology. Unocal will test and install an
unproved air pollution monitoring system that is mutually agreeable to the signatories of its Good
Neighbor Agreement and the County Zoning Administrator as outlined below: Unocal.. .will
design a monitoring test program that will include infrared or other state-of-the-art remote sensing
technology by January 31,1995. The test program will be designed to determine the effective
range of the monitoring instrument, the compounds that the instrument is able to detect, the
accuracy of the instrument at different ranges for detectable compounds, the reliability of the
monitoring instrument at different ranges and for detectable compounds* the suitability of siting
options, including the effect of localized environmental conditions (i.e., highways, fog, rain, wind,
218 Supra note 213.
219 Memorandum of Understanding between the Crockett-Rodeo Coalition, Shoreline Environmental
Alliance, Communities for a Better Environment, and Union Oil Company of California dba Unocal,
November 3,1996 regarding fenceline monitoring.
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etc.)* identification of specialized operation and maintenance requirements, and the best means of
recording the data collected.220
The MOU resolved some of the above issues, while implementation of the pilot program,
system construction, and use of the monitors raised countless others. The most important
issues resolved in the MOU included the kind and location of monitors, monitor spacing,
compounds monitored by each kind of monitor, how data would be recorded,
summarized, and made available to the public, system maintenance, and whether the
system would be able to trigger various elements of the County's Community Warning
System. While the monitoring system was still in the design stage, members of SEA
began to seek grants from the EPA and other sources for studies to measure pollutant
load in Crockett and to engage in epidemiologic studies using the data.221 Such a study
would have been unprecedented. Equally innovative were proposed efforts to incorporate
the system into the County's existing emergency notification network. In addition, the
technologies employed were relatively untested in the context of monitoring refinery
emissions. They included "open path optical remote sensors," which send beams of light
through the open air toward reflectors and gather "fingerprints" of the chemicals that pass
by the light. Every time chemicals pass the light, a portion of the beam is absorbed,
leaving a distortion in the beam of various wavelengths. These fingerprints are compared
to fingerprints in the monitor's internal library to determine the chemical makeup of what
has passed the beam. Three types of open path optical remote sensors were used as part
of the refinery monitoring system:
Fourier Transform InfraRed (FTIR): uses an invisible beam of infra-red light reflected off of a
mirror and returned to a detector, which looks for changes in light intensity at various wavelengths;
chemicals monitored can be programmed into the system, which saves raw data for further
analysis; over 300 chemicals can be detected by an FTIR during post-analysis.
Tunable Diode Laser System (TDLS): uses infra-red reflected off a mirror; looks for light
intensity changes at specific wavelengths; can measure hydrogen sulfide and ammonia.
Ultra-violet (UV): uses UV light and scans various wavelengths; can measure benzene, toluene,
xylene, carbon disulfide, and sulfur dioxide.222
Access to data from the above systems was limited in the MOU to video output for one
recipient from a camera trained on the fenceline monitoring computer screen in real
time.223 Residents were also allowed up to six requests for raw spectral data that were
stored by the monitoring system.224 By February 1997, the company reviewed means of
accessing the data, including video transmission, internet, remote access and control
software, and view-only supervisory software. It concluded that the latter was the only
technology that could satisfy elements of the MOU pertaining to speed, image transfer,
220 Supra note 197.
221 Mechling, A. (1996). Memorandum to Edward Masry, March 12, 1996.
222 Communities for a Better Environment (no date). Refinery Fenceline Monitoring Using Light Beams to
Detect Chemicals at the Fenceline of the Tosco, Rodeo Refinery.
223
Supra note 219.
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00^
and security. Thus it was determined that a single resident of Crockett would receive
software so that continuously updated levels of various chemicals could stream across
their computer screen in real time. The usefulness of these data has depended in large
part on the person receiving the data stream. Even in June 2002, Bill Concannon, who
presently receives the data stream, has no means of recording the data.226 Thus, he can
only check the computer screen, showing concentrations of 36 chemicals as they cross
beams of light beamed 1,000 meters across the north and south sides of the refinery.227
Raw spectral data, received monthly by Andy Mechling, are converted by a company in
Houston, TX into what is visible on the screen. The company, Petris Technology, uses
an air dispersion modeling program that takes the monitoring data and real-time
meteorological data in order to generate plumes and estimate concentrations
downwind.228 Unfortunately, it is difficult to compare concentrations on the screen to
regulatory standards. It has also proven a challenge to link the system to existing
emergency response networks.
Normally I first call the refinery because I figure if there's a problem I want the refinery to be
alerted to it so that they can deal with it. Because the people in Houston, they're just basically
interested in making sure that they do their job right which is to run the equipment right. And I'm
mostly interested in impacts from the refinery. So that's my goal is to top that. And a couple of
tunes I found stuff and sure enough there's been an open tank or they've had some problems or
one thing or another. We had a hydrogen sulfide release that actually showed up on the refinery
monitor, which is, that would be something we'd want to see...We call AQMD and they'll send
somebody out, I mean you know it's not that bad, I don't expect mem to just have somebody
sitting outside Crockett standing by waiting for our calls, we don't call that often. But one of the
reasons why we don't call more often is that by the time they show up, if there's no odor they're
kind of going, well, and we go, well, and you know.229
At the time, Concannon did not have the capability of recording what had passed across
his screen, meaning any proof of elevated levels of toxic chemicals would have to wait
until receipt of the raw data.
In April 1999, members of the fenceline committee entered their grievances with the
monitoring system into the public record through the Community Development
Department. Concerns expressed by the committee included:
• FTIR equipment is operated so as to only detect higher levels of chemicals, without optimizing the
detection limits readily achievable by the technology (contrary to the Planning Commission's
suggestion that the system be designed to enable detection of ongoing, day-to-day, lower levels of
pollutants in addition to higher levels)
• Raw data is not saved for UV or TDLS equipment (meaning some of the chemicals of greatest
concern to the community, including BTEX (benzene, toluene, ethylene, and xylene) chemicals,
could not be subjected to post-incident analysis by the community
• FTIR will be prone to false negatives, false positives, and poor detection limits
225 Iverson, D. (1997). Letter to Virginia Bray from Dale Iverson, Advisor, Environmental Programs,
Unocal San Francisco Refinery regarding fenceline monitoring, February 28,1997.
226 Interview of Crockett resident, June 7,2002, in Crockett.
227 Supra note 222.
228 Petris Technology (1998). Saf-T-Net Innovative Data Access and Management. Houston, TX, January
31,1998.
229
Supra note 226.
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• UV data are unreliable; there are repeated instances where the detector will swing from a large
negative number to a large positive number; monthly reports only include positive portion of the
swing, even though baseline levels of emissions are often recorded as far below zero
• TDLS data are problematic, and a quality assurance system needs to be in place for independent
measurement to determine if the equipment is operating properly230
In an effort to further evaluate and improve the system, SEA, CBE, and the County
Health Services Department formed a working group with Tosco (who by then owned the
refinery), AQMD, California EPA, California Department of Health Services, and the
EPA. Under an Environmental Monitoring for Public Access and Community Tracking
Program (EMPACT) grant, members of SEA (and later the working group) conducted
detailed analysis of the monthly raw data that had been collected. Many of the same
findings were noted in the working group's report, which recommended that data from
the FTIR be released on a website for one compound - total hydrocarbons, reported as
butane - as a pilot effort.232 Efforts to minimize false positives and negatives were also
proposed. To date, the data have not been posted in real time on a website.
The report also found that system alarm levels that were set before the monitors went
online in 1997 had never been reached. It was noted that
Hie absence of an alarm level may not necessarily reflect the lack of potential threat to the public
during a particular incident - it may simply mean that a release has not crossed the beam path, or
not crossed it in a sufficient concentration to trigger an alarm. At times releases have come from
high stacks and/or at high temperatures and have gone up and over nearby areas, rather than
diffusing or blowing along the ground near the monitors. In some such cases, including some
refinery fires that have occurred in the County, County Health Services has called a shelter-in-
place since wind conditions are unpredictable and change rapidly. Levels reported by the
fenceline system are also related to and may be affected by the length of the monitor's beam
path.233
The report concluded that "information from the open-path monitors at Tosco Rodeo
cannot at this time be relied on by itself for community emergency notification." Other
efforts to improve notification during industrial accidents, a primary concern expressed in
negotiations, were of similar consequence. As those interviewed agreed that the County
resisted efforts to monitor data from the fenceline monitors or make use of the data to
improve enforcement, there is also a sense that the County was reluctant to address its
community warning capabilities.
That's why I wanted a Level Two warning. I said that if we had another Catacarb incident
tomorrow, the County would not pull the plug because Catacarb was not listed as a hazardous
material, and Unocal would certainly never pull its plug by itself, push me button for the alarm.
Never, never, never, especially with the first bunch of administrators over there. And they had no
infrastructure working. The County system wasn't working. We would never be informed. And
230 Fenceline Monitoring Committee (1999). Letter to Debbie Sanderson, Contra Costa County
Community Development Department, April 12,1999.
231 Shoreline Environmental Alliance, Communities for a Better Environment, Contra Costa County Health
Services, & US EPA Region IX (2001). Optical Open Path Monitors at the Tosco San Francisco Refinery
at Rodeo Fenceline, May 2001.
»/««/.
233 Ibid, p. 34,
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one of the things that we designed were whistles over here for the County early warning system
and then of course there was this great debate, because the County said well, people don't like
whistles, they don't like sounds, and we said bologna, people want to be notified. And then the
question was when would they have the test and so it's tested once a month to make sure that it
works. And then all they needed to do of course was to get one individual saying well, I don't
want it over here, because it's next to my house. Then we have to go through all that. We had to
deal with all the details. We essentially bad to engineer and plan everything for Unocal and the
County.234
We wanted the County to have [the fenceline monitoring data]. And the County said we really
don't want that, after all, we rely on Unocal. Yeah, they call you three hours after an incident,
that's terrific. You guys need us. Well, who's gonna watch it? Well, no one's watching. Well,
maybe you could have an alarm on it, you know, there's software to put an alarm on it, so it could
ring a bell, so someone over at public health, well, there's no one over there at night. Well, maybe
it could ring somewhere else, like 911. On and on and on. There's always a reason not to do it.
And my fear is that we are not prepared.233
Listen to this: When we were doing this EPA grant, we were sitting at the table. We're sitting at
one of these meetings, we've got people from hazardous materials at the County there. We're
talking to them about, they have a monitor themselves, and when they got this money for this
grant, all of a sudden they hooked it up. They said but it doesn't work really well, it's really not
reliable, that was their constant theme why they didn't use it. The County. They were hooked up
to all of them, the FTIR, the UV, and the laser. Anyway, they could have been hooked up. At any
tune, they had the ability to be hooked up. Unocal agreed that would be fine. So they had this
equipment. What did they do with it? They stuck it in a hallway being a door upstairs where
nobody goes. And we didn't know this until I started questioning them in one of these meetings
we were at with the EPA during this. Now this is years later. This thing's been up since 1997.
And this is like 3,4 years later. And I said well, why don't we plug it in and bring it out? Well,
yeah, I guess we could do mat. Then you need somebody to use it. Oh, my God, it was a
nightmare.236
Of primary importance to residents was the fact that only "Level Three" incidents result
in public alerting of any kind. Catacarb-type incidents, should they occur in the future,
would be considered at most Level Two incidents, because of the lack of a major fire or
explosion or the presence of an off-site impact suspected of causing health problems
while the incident is ongoing.237 Level Three incidents by definition also have to involve
hazardous materials. For this reason, residents have tried to convince the County to
develop an alert system that would notify sensitive receptors, or those who are most
vulnerable to even low concentrations of certain chemicals, in the event of incidents that
did not qualify for Level Three notification. Residents contend that such a system
continues to fail to notify those in greatest need. Following a series of three incidents at
the Rodeo refinery in April 1997, residents testified to the County's Hazardous Materials
Commission that the existing Community Warning System in general could not work in
the ten minutes that it took for releases to reach Crockett.238 While the refinery had
provided sirens and some technical support, notification capabilities continued to fall
234 Interview of Crockett resident, October 3 1 , 2002, via telephone.
236 Interview of Rodeo resident October 30, 2002, via telephone.
237 Contra Costa County (2001). Community Warning System Hazardous Materials Accidental Release
Matrix, April 24, 2001.
238 Contra Costa County Hazardous Materials Commission (1997). Draft minutes, April 24, 1997.
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short of resident expectations. Community negotiators' hopes that millions of dollars
worth of monitoring equipment, and a new desire to notify vulnerable populations made
possible by awareness generated by the Catacarb spill, could be incorporated into an
improved emergency response network had not been met.
Emissions Reductions. UnocaTs approved land use permit included condition 79, which
required the company to (a) begin monthly monitoring of valves and pumps subject to
quarterly AQMD monitoring, (b) make results of leak testing available to the CAP and
AQMD, (c) replace or upgrade repetitive leakers, and (d) continue these actions until
fugitive emissions are reduced from 2,787 Ibs/day to 2,000 Ibs/day.239 Unocal was also
required to maintain that reduction. Specific replacements drafted during GNA
negotiations were incorporated in the final permit, including:
Replace 12 < 2 inch valves at Unit 228 with bellows valves by March 1,1996
Replace 40 valves at Unit 210 with bellows valves by March 1,1996
Replace an additional 28 < 2 inch valves leaking at 10,000 parts per million by March 1,1996
Install an additional 50 bellows valves (< 2 in.) by December 31,1996
Install an additional 50 bellows valves (< 2 in.) by December 31,1998
Reduce fugitive emissions on Unit 228 valves by nitrogen purging the valve stuffing boxes to
vapor recovery for 25 specialized control valves by February 28,1995
Modify/replace seven pumps
Do not seek emission reduction credits for any reductions hi mis agreement
Unocal purchases of emission reduction credits for offsets associated with the Reformulated
Gasoline Project will be from sources as close to the local area as are available.240
Residents are confident that these changes have been made. In early quarterly updates,
Unocal indicated that it had increased its frequency of monitoring, hired a new fugitive
emission contractor, and "continued an aggressive program to repair valves.241 By
February, 1996, Unocal reported that its fugitive monitoring suggested emissions of less
than 2,000 Ibs/day. Monthly monitoring on components with higher emissions was
continued.242 In 2000, the EPA reported that fugitive emissions at the refinery, then
owned by the Tosco Corporation, totaled 67 pounds per day, suggesting that
improvements encouraged by the GNA continued long after the initial installation of
bellows valves.243 However, overall releases of toxic chemicals increased substantially
following the refinery *s receipt of its clean fuels permit. Subsequently these releases fell
by one third, between 1996 and 2000.
239 Supra note 197.
240 Ibid.
241 Wilkes, J. (1995), Letter to Community Advisory Panel Members from Jeffrey Wilkes, General
Manager, Unocal San Francisco Refinery, November 1,1995.
242 Wilkes, J. (1996). Letter to Community Advisory Panel members from Jeffrey Wilkes, General
Manager, Unocal San Francisco Refinery, February 1,1996.
243 Environmental Protection Agency (2002). Envirofacts data warehouse, Tosco San Francisco Refinery,
Rodeo. http://oaspU-b.epa!gov/envirQ/multisys2.get list?faciiitv uinHJ 0000483487. accessed November
13,2002.
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Figure 6. Total Air and Water Releases of Toxic Chemicals to the Environment from
Unocal Refinery, 1988-2000 (vertical line represents initial GNA/permit approval)
Air Brtssions (Ibs)
Vteter Brtsstons
Total Brissnns
(Ibs)
1988 1991 1994 1997 2000
Source: Environmental Defense's Scorecard.lmp://www.suorecard.org/env-relcases/facilitv.tcl?tri id=^4572NCLSNQLDHl.
accessed November 13,2002.
Changes to refinery equipment did not come without conflict. By March 1997,
community representatives had not seen documentation of promised valve
replacements. As with many issues touched by the GNA, oversight and enforcement
proved particularly taxing to residents.
School Safety. Having settled for school improvements instead of relocation assistance,
members of the school safety committee sought to ensure that Unocal followed through
with its commitment to fund
An assessment of school facilities in the boundaries of the John Swett Unified School District...to
identity the risks that the schools could reasonably be expected to be exposed to in the event of a
chemical emergency. The assessment will be performed by an independent contractor with
expertise including but not limited to industrial hygiene, mutually agreeable to the signatories to
this agreement and the school district...The assessment will include a physical inspection of each
school facility, the identification of potential exposures from nearby industrial facilities, and a
review of current evacuation procedures in cooperation with local emergency response
agencies... The contractor will recommend mitigation for identified risks. The mitigation of any
risks attributed as pan of this assessment at Hillcrest Scholl that are attributable to Unocal
operations will be funded through the $378,000 previously contributed by Unocal. If the cost of
mitigating risks at Hillcrest School that are attributable to Unocal's operations at the refinery
exceeds $378,000, Unocal will provide additional funds up to $122,000, for a total not to exceed
$500,000 to perform appropriate mitigation.245
244 Bray, V. (1997). Letter to General Manager, Unocal-San Francisco Refinery, Wilbur McClaveill,
General Counsel, Tosco Corporation, Mark Smith, Senior Counsel, Unocal Law Department, and Duane
Borduick, Tosco Vice President from Virginia Bray and CBE regarding Good Neighbor Agreement, March
3,1997.
243 Supra note 202, Section Four.
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In May, 1996, community signatories to the agreement met to discuss their grievances
with Unocal. They reviewed the risk assessment findings, which suggested that Hillcrest
should be relocated, and that the existing school should have fully pressurized shelter in
place capability.246 There were also concerns that Unocal had not provided sufficient
evacuation/emergency response plans, shelter in place kits, medical staff, links to existing
emergency warning systems, or heating and ventilation for local schools.247 As with the
epidemiological study, Unocal chose not to act on the school risk assessment's findings,
and instead sought to hire another consultant to review the initial findings, according to
residents. By 1997, the school safety committee announced that it had "reached an
impasse with Unocal" with regards to compliance with school safety issues.248 The
committee noted that appropriate improvements to all assessed schools to mitigate risks
identified as attributable to the refinery had not been made, and that shelter in place
supplies and equipment had not been supplied to the school district or to private schools.
Points of dispute were issued to Unocal after the company's manager of external affairs
told the committee that Unocal was not in a position to commit to deadlines not expressly
stated in the GNA.249 The committee referenced the "intent by the negotiators at the
negotiation table" to "have these studies, and risks, mitigated, and work completed, as
soon as possible."250 Work continues beyond the purview of the GNA to secure adequate
funds to relocate Hillcrest Elementary.
25f
Good Neighbor Clinic. Prior to finalization of the GNA, Unocal opened and funded a
Good Neighbor Clinic in Crockett. The purpose of the Clinic was to diagnose and treat
people affected by the Catacarb release. Unocal agreed to pay "reasonable clinic
overhead costs" for up to six months and for the assessment of "any individual who
wishes to be evaluated at the clinic and believes he or she was affected by the
incident.'*252 The Clinic, in conjunction with proposed studies and funding of an
Emergency Response Van to be run by County Health Services, was to give residents a
clear sense of the extent of the damage caused by the Catacarb spill, to treat conditions
and diseases caused or even **most probably related" to the spill, and to assist company
and agency officials in responding to future accidents. Members of the community
Health Committee who worked on the Clinic were also interested in finding out more
about the Catacarb solution itself.
The Catacarb release was a situation where they had Material Safety Data Sheets of all the
individual components that went into the mixture as they mixed it into a clear water white solution
that goes into the process and then after it gets recirculated in the process for many months and
even years it becomes something else altogether, it becomes a black, brown viscous liquid that is
full of materials that bear very little relationship to what is hi the original components because of
246 May, J. (1996). Memorandum to Virginia Bray from Julia May, Communities for a Better Environment
regarding committee concerns, May 7, 1996.
248 Shoreline Environmental Alliance (1997). School Safety Committee Points of Dispute with Unocal.
250 Ibid.
231
Bell, E. (1999). Crockett school bond may move students. San Francisco Chronicle, September 17,
1999,p.A-18.
252 Supra note 202, Section One.
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the high temperature conversion and so on. So that's what we got sprayed on us and we asked
Unocal repeatedly for an analysis of the compounds that we had ingested and they in turn had to
go to the vendor who supplied them with the chemicals and that vendor refused to cooperate under
attorney-client privilege. So it's a case where you have the material that you're exposed to and yet
you cannot find out what it is.233
The Clinic was run by a committee composed of a community representative, a physician
representing the operator of the clinic, a university-affiliated independent physician
selected by Unocal, a Unocal representative, and a local physician selected by the
Crockett-Rodeo Coalition and SEA.254 Work progressed at a feverish pace, so that by
August 1995, the Clinic had served more than 600 residents of Crockett and Rodeo:
460 patient charts evaluated
20% resolved
50% need continued care
209 new patients booked for initial intake visits and evaluation
115 people on waiting list255
In addition the Clinic received an average of 10-15 calls per day from new individuals.256
A request to extend Clinic operations was granted by Unocal, which agreed to a five-
week extension. The Clinic ceased operations on November 15,1995. Residents whose
symptoms were determined to be "more likely than not related to Catacarb exposure"
were promised continued treatment.257 The health committee was disbanded, leaving
communities with little ability to oversee patient treatment. By January 1997, a number
of grievances were recorded by former health committee members.258 For instance,
GNA-approved patients were in some cases denied continuity of care, including retesting
and further referrals to specialists. Medical protocol changes were noted, including
discontinuation of vitamin supplements and certain kinds of therapy. And as the number
of patients in the Clinic database reached 1,275, it was unclear whether progress was
being made on identifying root causes of health problems.
It should have been continued longer because so many people were still being treated. And a lot
of it may have been just placebo because they just really didn't find any cure for it. They were
able to get all kinds of neurological testing done and saw aberrations and a lot of commonality of a
lot of strange symptoms but they never came up with any way to treat it other than just time, there
were mega-doses of vitamins, antioxidants, that some people responded to, but maybe that was
just placebo effect, too. I don't know.259
Indeed, at least one member of the Clinic staff, Dr. Shames, expressed interest hi
providing biofeedback treatment for "chemically-induced cognitive and affective
233 Interview of Crockett resident, June 8, 2002, in Crockett.
254 Supra note 251.
235 Health Committee (1995). Crockett/Rodeo Communities* Proposal to Unocal Corporation Regarding
Extended Operation of Good Neighbor Clinic, August, 1995.
251 Wilkes, J. (1995), Letter to Medical Clinic Committee from Jeffrey Wilkes, General Manager, Unocal
San Francisco Refinery, December 21, 1995.
258 Health Committee (1997). Health Committee Good Neighbor Agreement Noncompliance Issues,
January 28, 1997.
239 Interview of Crockett resident, June 8, 2002, in Crockett.
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*)£A
problems" in July 1995. Some interviewees expressed doubt that adequate treatment
was possible following closure of the clinic, given the lack of community oversight and
the fluid nature of physician understanding of treatment options toward the end of official
Clinic operations. Further, community representatives claim they were denied assistance
from the County in analyzing samples of Catacarb, one of which continues to sit at the
County Department of Health Services.
Vegetation/Parks. At least one Crockett resident had been requesting that Unocal plant
trees to serve as a buffer and improve air quality since 1979, when Steve Batchelder's
daughter entered kindergarten at Hillcrest Elementary.261 Requests for vegetation as
mitigation for the RFG were also initially turned down, as was Batchelder's proposal
during GNA negotiations for Unocal to fund a Tree Management District. Elements of
his proposal did make it into both the permit and the GNA. The permit called for a
landscaping plan to improve the visual appearance of the refinery and the "visual
character of the area." It called for the use of berms to provide greater screening, the
planting of at least 350 15-gallon trees and 25 20-24 foot trees, the use of vines and
shrubs, and prompt replacement of vegetation. The GNA adds that Unocal will spend an
additional $30,000 per year for nine years to further vegetate areas of its property, and
calls for a detailed vegetation plan to address a variety of issues.263 Oversight of this
provision of the GNA was left to the CAP, which was to provide input on the vegetation
plan. Both the GNA and the permit also called for Unocal to spend $100,000 for a bike
trail through the company's property. In addition, Unocal agreed to minor commitments
such as a promise to work with Crockett to facilitate a trail crossing of Interstate 80 and
to make a $5.000 donation to the Carquinez Strait Preservation Trust for use in
_ __ * fy£A
developing a Tree Management District. Implementation of the landscaping plan was
initially problematic. The plan was presented to organizations such as the CIA (as
required in the permit conditions), which approved the document. Following initial
approval, significant changes were made and the altered landscape plan was kept from
certain residents.265 Questions were raised as to whether the proper species were being
proposed, as well as whether Unocal would agree to prepare the soil to ensure that the
trees would mature properly. Problems also emerged as new refinery management
reinterpreted the portion of the GNA concerning the bike trail. In order to bring a trail
through their property, pipes would have to be moved, leaving Unocal in a position to
value the cost of such an effort and potentially deduct that cost from the funding
commitment.266 By January 1997, Batchelder submitted his grievances to the Board of
Supervisors, claiming that the CAP had not been granted final right of inspection prior to
260 Ochs, L. (1995). Letter to Richard Shames, M.D. from Len Ochs, Psychologist, July 22,1995.
261 Interview of Crockett resident, November 7,2002, via telephone.
262 Supra note 197.
263 Supra note 202, Section Tlu-ee.
264 Ibid.
265 Peterson, K. (1996). Letter to Richard Belcher, RFG Project Manager, 76 Products Company from Kent
Peterson, Chair, Planning Advisory Committee, Crockett Improvement Association regarding RFG Project
Land Use Permit #2038-93, January 29,1996.
266 May, J. (1996). Memorandum to Virginia Bray from Julia May, Communities for a Better Environment
regarding committee concerns, May 7,1996.
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approval and acceptance of the first round of tree planting.267 He also claimed that
Unocal refused to further discuss a Tree Management District. While residents agree that
the tree planting has progressed and that certain concerns have been addressed, the
staunchest supporters of the program have left the CAP and remain discouraged by the
degree of difficulty that they faced in working to achieve the GNA's landscaping and
parks commitments.
Transportation. Prior to the completion of the final GNA, Unocal hired a consultant and
began to work with Caltrans, County staff, and community representatives to identify
transportation projects and prioritize them according the local preferences.268 It was
decided that Unocal should pursue the Cummings Skyway extension, to alleviate truck
traffic through Rodeo (particularly for the transportation of coke) and to provide an
efficient means of entering and exiting Crockett. The extension was built just prior to the
destruction of on- and off-ramps for the Carquinez Bridge project. Also prior to
completion of the GNA, the refinery consolidated its deliveries of anhydrous ammonia
and scheduled them to avoid peak traffic periods. Plans were in place by the end of 1995
for the phased reduction of anhydrous ammonia by December 1996 and 2001.269 By all
accounts, this project has been completed. These projects shared broad support during
negotiations and were comparatively easy to verify during and following implementation.
Financial Assistance. After the parties agreed to the terms of Unocal's financial
contributions, community representatives had to establish mechanisms for allocating
$100,000 per year to Crockett/Tormey and Rodeo/Bayo Vista. The Crockett-Rodeo
Coalition and SEA requested that initial funds be deposited with the East Bay Foundation,
based in Oakland. They scheduled town workshops to gather input into the financial
distribution process.270 Crockett residents chose to channel the money through the
Crockett Foundation, which had been created to receive property tax increments as a
direct result of the community's negotiations with proponents of the cogeneration plant
built in conjunction with C&H Sugar. Rodeo, which lacked an established foundation,
chose to distribute the money through the RMAC. Some residents expressed concern that
these arrangements limited access of groups such as SEA and the Bayo Vista
Neighborhood Council to the funds. Records indicate that the Crockett Foundation has
been amenable to funding small-scale assistance with SEA's air quality monitoring
efforts.271 The Foundation and the RMAC each developed their own criteria, within
broader limits set by the GNA negotiators, for choosing among small grants applications
or for pursuing their own initiatives (such as the provision of street lamps in Crockett).
267 Batchelder, S. ( 1 997). COA 62 - Landscape Plan comments, January 31,1 997.
268 Wilkes, J. (1995). Letter to Community Advisory Panel Members from Jeffrey Wilkes, General
Manager, Unocal San Francisco Refinery, November 1, 1995.
270 Anderson, A., Cherry, L., & Blakeney, R. (1995). Letter to Jeff Wilkes, 76 Products Company from
Alica Anderson, Lynn Cherry, and Ruth Blakeney, Crockett-Rodeo Coalition and SEA, April 19, 1995.
271 Crockett Community Foundation (1999). Foundation News, June, 1999 ("In the past two years the
Foundation Board, either by direct payments or by the grant process, has allocated $22,000 for oversight
purposes. The Board has concentrated its concerns primarily in the areas of Air Quality Testing and
Sampling and accurate interpretation of data from the Fenceline Monitoring System at the Tosco Rodeo
Refinery.")
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The Foundation went one step further and organized a committee for oversight over the
entire GNA. The objective of the GNA negotiators was to write a funding agreement
so that the coalition could hand the money over to the foundation and walk away from it and
hopefully not feel concerned about how it was going to be spent. The coalition said OK, we
would like to hand you mis money and these are the areas where we would like to see it spent:
recreation, environment, and a few others. And the foundation was somewhat reluctant because
we had local people that to this day deny that there was ever any impact from Catacarb. It's those
people who don't belong here that are rabble rousers and we don't think that they should have
anything to say about Crockett.272
The RMAC was slower to develop guidelines, objectives, or criteria for its disbursement.
This led to the funding of several controversial projects, such as playground equipment
for a Catholic school. Funding allocation for vocational education in the John Swett
School District was even more problematic. Unocal and successive owners of the Rodeo
refinery allocated the funds as promised. Yet there was initially a lack of transparency
that made it difficult to ensure that funds were spent appropriately. Interviewees recall
such projects as the purchasing of a forklift and hiring a person to administer the funds
for much of the value of the yearly allotment. At present, the refinery CAP, with the
assistance of an experienced facilitator, has worked to improve the vocational education
program and to develop a curriculum for students who could one day work at the refinery.
We created an industrial survey course, since it is most closely related to the refinery and the idea
that kids coming out of that could ultimately have jobs with the contractors or the refinery itself.
What that has led to is a multifaceted careers academy where we're using the Philips money in
conjunction with other money mat we're nying to get, to develop a truly comprehensive careers
academy that among other things will have an industrial survey course, a construction survey
course, by industrial survey I mean exposure to the craft areas: electrical, plumbing, pipe fitting,
welding, boiler making, steam fitting, sheet metal, all those different craft areas. Construction
survey would be more related towards construction and their first project will be the reconstruction
of the announcer's booth. Everything from blueprints and approvals to ultimately pouring forms
and putting up foundations. ..The third area is a wastewater treatment component that as I
mentioned earlier is potentially coming out of a NPDES enforcement action against C&H, and the
final area is public safely with the possibility of a fire sciences course.273
Each of the funding streams from the GNA has been upheld by successive owners of the
refinery, including the Tosco Corporation and Philips 66. Negotiating committee
members who remain in the region share a concern that new owners will at some point
claim that they are not obligated to continue to make payments. So far, refinery owners
have upheld commitments to making these annual contributions to the communities.
Oversight/Enforcement. At various moments following the completion of the GNA,
residents expressed concern or even formal grievances with the refinery for their lack of
timely or proper completion of certain tasks. While these concerns have never led to
legal action, mere is always the possibility that they will. And as members of the
negotiating committees move out of the area, committees disband, and initial CAP
members resign, it becomes increasingly difficult to capture the original intent of the
272 Supra note 198.
273 Supra note 165.
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GNA and many of the unwritten understandings that were perceived prior to its signing.
Residents describe current implementation as a series of attempts to link a "tenth-hand"
interpretation of the GNA on the refinery's side with a ''third-hand" understanding on the
community side. Yet when differences of interpretation mount, project design slows
down, or data are not used for purposes previously agreed to, it is unclear how the
community would even initiate a dispute resolution process. CAP members, originally
charged with some degree of oversight, are unsure as to whether they "even have a right
to be the people to opine on implementation." Community negotiators ask, "Who from
the agreement enforces the agreement?" More pointedly, residents are uncertain about
how enforcement could play itself out, in the absence of resources to verify agreements
or seek technical and legal assistance.
It's been a tragedy with this one, because it was after all the hell and fire and brimstone we went
through getting this thing, it was a pretty good agreement. But so what? You can't enforce it.
The way they got around it was they made it unenforceable. There's nothing you can do if you
don't have a dedicated staff that has some kind of financial support. If you could have someone
who could sit and badger and write back and forth and do all the things you have to do to even get
the refinery's attention and work with the County staff to say hey look, they're not doing this, let's
see if we can get mem this way. Unless you have that, somebody doing that, you just don't have
anything. And that's the unfortunate tragedy of this GNA. Nobody's doing anything with it. And
we can't because we have no time, money, or impetus anymore. I think that if there was another
major release, all of a sudden you'd have people interested in it again and volunteers and so forth.
But that's the nature of the beast. It's unfortunate but it's just human nature.274
Interestingly, a transition of much of the advisory and oversight capacity from
negotiation committees to the CAP has led to a number of benefits for Bayo Vista, the
public housing authority that borders the refinery (now owned by Philips 66) in Rodeo.
Initially the CAP was appointed by the Board of Supervisors. More recently, the CAP
became a self-governing body that was able to appoint or select its own membership.
Several interviewees noted a shift toward issues of refinery-community relations, jobs
and vocational training, and small-scale community improvement projects. While it is
true that such efforts do not address the underlying causes behind the Catacarb release,
they do concern many of the interests shared by Bayo Vista residents, who are
predominantly low-income people of color. Residents of Bayo Vista noted that certain
oversights during GNA implementation, such as failure to provide transportation to the
Clinic, consider paniculate matter monitoring for Rodeo, or ensure that a fair portion of
the GNA's financial assistance be provided to address human services needs in the
housing authority, were of far greater concern than the specifics of health study or air
quality monitoring protocols (although leaders in Bayo Vista consider the location of the
monitoring data hookup in Crockett a further unfair outcome of the GNA and are
pursuing access to the data stream). Indeed, some residents in Bayo Vista have used a
portion of their litigation settlement money to purchase ah* filtration systems for their
homes to reduce participate matter, which is suspected of contributing to the high rates of
asthma among Bayo Vista children.275 While they criticized the effectiveness of certain
274 Interview of Member, Shoreline Environmental Alliance, May 31,2002, via telephone.
275 A health study conducted jointly by Kids Against Environmental Pollution and Communities for a
Better Environment found that asthma was reported in one or more children in 50.5% of households.
Allergies were reported in one or more children in 56.9% of households. 87% of households reported
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GNA elements, Bayo Vista residents most readily credited the refinery for its support of
local efforts (i.e., scholarships, free lunch program) and for their willingness to work
toward ensuring that remaining funds promised through the GNA are leveraged to the
greatest benefit of the community possible. They also pointed out the history of the land
upon which the housing units were built, to suggest that potentially greater environmental
hazards have gone unaddressed:
It used to be the old projects. And my understanding is the cows, there was a pasture with cows in
it down over here, and the cows started dying. Over in Celby years ago, they tore it down in 1960.
Tltere was a great big smokestack and I'm not sure what they did there. It's between Rodeo and
Crockett. Celby is on one side of the road and Tormey is on the other side of the road, and if you
go down San Pablo Avenue that way it's down at the bottom of the hill. And one is on one side,
one is on the other side. They used to be rather large communities, they even had a school. Now
they're just a little spot on the road. The cows were dying from the stack. There were slag piles.
Somebody who grew up here tells me there were slag piles around me smokestack. It would burn
the tread off their tennis shoes. They tore it down in 1960. Four or five years ago they decided
that the most environmentally friendly thing that they could do was to cover it with pavement.
And it's all paved out there now. If you go there and look, it's all paved. You can see from the
top of the hill up here that they paved out there. And that was the best that they could do for the
pollution.276
Residents expressed concern that their homes lie over lead slag deposited by ASARCO,
which operated the smelter prior to it being torn down. While such challenges are
beyond the scope of resident interaction with the refinery, the CAP gives residents a
chance to voice these concerns and solicit the assistance of the refinery in getting the
County's attention on such matters. The CAP's facilitator acknowledges that "nowhere
more clearly have [Bayo Vista's] interests been articulated than through the CAP."277
Discussion.
While the Unocal GNA represents a more advanced version of the MOU reached with
Chevron, the two agreements share some important characteristics. First, the contours of
each agreement grew out of the unique ways in which each Impacted community became
represented in settlement talks. Community negotiators during the Chevron RFP relied
on input from resident councils and then increasingly on three environmental groups
(People Do!, CBE, and West County Toxics Coalition). The resulting MOU focused on
key elements of each of these organizations' proposed mitigations. Similarly, the Unocal
GNA represents a crystallization of the disparate efforts of committees that in many cases
held unique or even divergent interests. Entire sections of the GNA represent
compromises or "something close to the bottom line" for the committees. While each
approach to reaching agreement encouraged parties knowledgeable or concerned about
certain issues to develop innovative mitigation packages, they also hindered broader
problem solving and made it easier to table both costly (and arguably necessary) changes
and discussions of root causes of environmental impacts or refinery accidents. The
noticing smells of either sulfur or ammonia in their neighborhood. Kids Against Environmental Pollution
(7001). State of the Neighborhood: Bayo Vista Youth Health Survey, December, 2001.
2'6 Interview of President, Bayo Vista Resident Council, June 8,2002, in Bayo Vista.
2T7
Supra note 165.
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agreements were reached in such fashion in large part because of the permitting processes
that were leveraged to encourage negotiations in the first place. These processes begin
with a call for public comments, which inform a comparatively small number of
mitigations proposed by staff of permitting authorities (i.e., the Planning Commission).
Parties try to make changes to these mitigations, often at the margins. The Chevron and
Unocal agreements departed from past practice in that before they were reached,
coalitions of resident councils or citizen committees were able to convince planning
bodies to adopt (in some cases wholesale) a number of entirely new and innovative
mitigation proposals. Some of these proposals had been offered for previous
reformulated fuels projects. By the time Crockett and Rodeo residents sat down with
Unocal management, they found themselves in a unique position to propose all of these
mitigations (financial, monitoring, structural changes) at once. On one level, the Unocal
GNA represents a high watermark in the evolution of community-corporate compacts, in
that it incorporates much of what had been learned through previous negotiations.
It is without question that both agreements represent improvements over what would
have been required by permitting bodies alone. But given the level of interaction and
deal-making between the refineries and the permitting agencies prior to permit approval,
it is difficult to tease out the extent to which improvements were in fact encouraged by
the negotiations, political considerations, unilateral concessions, or other factors. Last-
minute concessions by the companies or wording changes encouraged by community
members meant that conditions of permit approval incrementally approached the
language of proposed GNA's. GNA negotiations offered residents an additional forum in
which to discuss issues that did not share a nexus with proposed project impacts. It
would prove more difficult for such issues to be included in a land use permit and to
survive legal challenges by the applicants. Still, this degree of flexibility did not yield
some of the more important concessions (proposed by residents) that lacked a nexus to
the clean fuels projects. These rejected proposals represented limits to which GNA
negotiations could "outperform" the permitting process. They derived from both the
structure of the negotiating coalitions and their demands, and the unspoken boundaries
drawn by the companies in terms of precedents that they wanted to avoid or relationships
that they did not want to encourage. Most readily excluded from negotiations were ideas
relating to questioning "normal operating procedures" of both the refineries and their
monitoring agencies and establishing new roles for local residents in plant inspection,
pollution patrols and citizen monitoring, and early warning and notification. Resistance
to these proposals, coupled with County readiness to push for certain projects (i.e.,
Cummings Skyway extension), encouraged negotiations to drift toward what in the end
appeared to some to be lopsided agreements.
The timing of environmental permitting processes and their disjointed nature (one
process ends as another is about to begin) pushed community organizers to seek efficient
means of representing the interests of impacted communities. In both of the clean fuels
processes, CBE and other organizations were quite successful in reaching out to diverse
stakeholders and soliciting their ideas and approval of various proposals. Greater
difficulty was experienced in trying to feed corporate response to proposals back to an
equally diverse cross-section of impacted areas. And over time, requirements such as
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standing (such as when three groups filed appeals to the Air Control Board hi the
Chevron case), organizational status (important for issues of funding and GNA oversight),
and timing meant that some groups were not reached as often or lacked the same
authority or mandate to comment on proposals or company actions. Hints of these
excluded elements emerged during the implementation phase of each agreement.
Elements of the impacted communities that were successful in protecting their centrality
until just prior to the hearing of final permit appeals by the Control Board or the Board of
Supervisors faced another set of challenges. Particularly in the case of the Unocal GNA,
reaching agreement can be viewed in hindsight as a comparatively straightforward
process. While negotiations included a great deal of positional bargaining,
implementation called for the parties to interpret and add considerable depth to each
commitment, often with new faces and on several occasions new organizations. This
process entailed steep learning curves and attention to excruciating detail, sometimes
without the encouragement of fixed deadlines. Implementation also added a dimension
of resistance by consultants and the County to certain efforts, findings, or interpretations
that did not serve their interests or those of their employers. Establishing protocols for
complex environmental studies or fenceline monitoring in such a context proved daunting.
Enforcing side agreements or the recommendations of working groups or study authors
proved nearly impossible in some cases.
But these agreements suggest that there is much that can be agreed to and achieved above
and beyond the scope of traditional environmental permitting efforts. They certainly
represent more inclusive and effective means of generating conditions of approval than
standard notice and comment cycles. Yet the goal of environmental justice communities
should not stop at merely outperforming existing administrative options. The Unocal
agreement in particular points to stark limits to what an industry will be willing to
consider, however constrained it is by timing, media attention, the threat of litigation, and
the general knowledge that there are internal organizational changes needed to avoid
similar high-profile disasters hi the future. These limits, which only were suggested here
by what was considered, resisted, tabled, or implemented ineffectively, point to a number
of process considerations and questions for coalitions to consider before a community
enters the fray over an environmental permit. They also suggest ways in which a
permitting process can be augmented to enhance representation, integrative potential, and
enforcement capabilities, which we will discuss in the conclusion. Bayo Vista, which in
some ways has been able to meet its interests more effectively through its involvement on
a CAP, hints at the diverse citizen participation needs of various elements of impacted
communities.
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