Part 1: Superfund a Super Deal for Texas Polluters

Many industry legislative initiatives during Gov. George W. Bush's term in office follow parallel themes: limiting liability for polluters, reducing public input on regulatory decisions, allowing 'voluntary' instead of mandatory compliance with environmental laws, and, allowing polluters to design their own anti-pollution programs.

This week PEER focuses on House Bill 2776, passed by the Legislature and signed into law by Governor Bush in the 75th (1997) Texas Legislative session. The bill overhauled Texas' state Superfund program, which oversees cleanup of hazardous waste on industrial sites that may pose a health or safety threat, but which do not qualify for the federal Superfund program. Polluters Write Texas Environmental Policies

The bill was the culmination of a process initiated by some of Governor Bush's closest allies and political supporters. Soon after Bush appointed Barry McBee, Chairman of the Texas Natural Resources Conservation Commission in 1995, the agency established a "workgroup" to reevaluate the state's hazardous waste cleanup programs. (1)

Much like the secret industry workgroup that developed Governor Bush's policy on grandfathered polluters. This body was dominated by the state's most significant polluters, with virtually no outside input.

At a Senate Natural Resources committee meeting in May 1997, Bush-ally State Senator Buster Brown attributed the bill's proposals entirely to this workgroup. Brown told Senators that it included "interested parties involved in all aspects of the program, including industry and environmental representatives."(2)  Rep. Mike Jackson made a nearly identical statement to the House Environmental Regulation Committee.(3)

Public Shutout of Superfund Reform

PEER has learned that no environmentalists or other public members participated in the workgroup developing this bill -- only representatives of polluting industries.

Only three environmentalists were even listed among the 38 members of the workgroup. When PEER contacted the two Sierra Club representatives listed as workgroup members -- State Sierra Club Director Ken Kramer told us they did not participate after attending one or two meetings. Kramer said there'd been "no input from our group and certainly no sign off on the final outcome."(4)

The rest of the members who wrote the legislation consisted of a who's who list of polluters - 35 representatives from business associations or large companies. They included: lobbyists for the Texas Chemical Council, the Texas Association of Business and Chambers of Commerce, the National Federation of Independent Business, and the Independent Bankers Association of Texas, representatives of agribusiness, the insurance lobby, and an array of polluting companies like Dow Chemical, Temple-Inland, Dupont and Union Carbide. A handful of employees of various state agencies (7) were also listed as workgroup members.

In other words, far from representing input from "industry and environmental" representatives, as Senator Brown and Rep. Jackson would have their colleagues believe, the authors of HB 2776's policies came nearly universally from polluting industries.

State Superfund bill weakens environmental protection

It's not surprising then that the policies implemented in HB 2776 enormously favored polluters and property owners who would otherwise be liable for pollution. The highlights include:

• Limited liability for lenders and fiduciaries for hazardous waste cleanup and the impact of pollution on the public.
• Extended immunity from liability for off-site contamination, i.e., for contamination of other people's property, under certain conditions.
• Allows the TNRCC Chairman to remove facilities from the state Superfund list even if a landowner has not requested it.
• Changed requirements for de-listing state Superfund facilities: Previously sites could only be taken of the Superfund list after a public contested case hearing; HB 2776 changed that requirement to mandate only a "public meeting" before sites were taken off the list.
• Ended TNRCC's practice of filing state liens on state Superfund sites. Under the new policy TNRCC merely sends the landowner a bill.
• Allowed new options to resolve polluter liability, including "covenants not to sue," mixed (i.e., partially public) funding for cleanup projects, and "partial settlements" where the polluter pays less than the full cost of the cleanup.
• Created a new class of state-defined "Innocent Property Owners," and authorized TNRCC to issue "certificates of innocence" which absolve the property owner for liability for hazardous waste on their properties.

Texas superfund laws were designed to hold accountable individuals and businesses whose toxic pollution threatens public health. HB 2776 is yet another example of how under Governor George W. Bush, Texas industry has reduced legal liability for its actions, weakened public participation, and reduced penalties and enforcement by state agencies charged with protecting public health and the environment.

In Part 11, PEER will examine how this bill turned into a "Christmas tree" for special interests- one where all the polluters got nice presents, and examine the legal impacts of HB 2776.

Sources:

1. Recommendations of the Fund 550 Workgroup, August 1996, p. 1. It mentions here that the executive director of the TNRCC instigated the workgroup.
2. Brown's comment transcribed from tape of the Senate Natural Resources Committee hearing, 5/13/97.
3. Tape of the House Environmental Regulation Committee hearing, 4/1/97.
4. Interview with Sierra Club State Director Ken Kramer, 12-14-99.

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