Capitol Chronicle

The crowd gathered at the Broken Spoke Sunday night seemed a typical South Austin dancehall audience -- maybe a little older than average, maybe a little more country than most Austinite "urban contemporaries" these days. Marcia Ball and her band were in fine form, with Marcia decked out for the nearly Halloween occasion in a blond bouffant wig, teasing the audience, "Don't hate me because I'm beautiful."

The occasion was not just another longneck two-stepper, but a fundraiser for Neighbors for Neighbors, the Lee and Bastrop County community organization that has been fighting the expansion of Alcoa Corp.'s Milam County strip-mining operation for several years. There was a silent auction and a T-shirt sale ("Austin Chronicle: Best Dragon-Slayer, 2001" read the shirts), proceeding comfortably amidst the broken-in Broken Spoke atmosphere of Good Times First, Fussin' and Fightin' later.

But there was at least the scent of burning lignite in the air, since a few days earlier Neighbors for Neighbors, Environmental Defense, and Public Citizen had served Alcoa with their formal notice of intent to sue for what the groups say are Alcoa-Rockdale's violations of the federal clean air act. As they charged in an Oct. 24 press release, "Alcoa failed to install state-of-the-art pollution controls, as required by the Clean Air Act, after it conducted a major overhaul of its power-generation boilers in the mid-1980s, and has been illegally discharging thousands of tons of pollutants from the Rockdale facility for the last 16 years."

Since the 1950s, Alcoa has been operating its lignite-fueled aluminum smelter without modern pollution controls, because the plant and its massive air pollution (annually emitting more than 100,000 tons of nitrogen oxide and sulfur dioxide) was "grandfathered" in 1971 under the provisions of both state and federal clean air legislation. Earlier this year, Neighbors for Neighbors volunteers discovered regulatory documentation that appears to show Alcoa performed "major modifications" of its boilers and related equipment in the mid-Eighties: reconstruction and repair that in theory should have triggered legal requirements that the company install modern pollution control equipment. When Neighbors submitted its documents to the Environmental Protection Agency and the Texas Natural Resource Conservation Commission for review earlier this summer, the company responded with many thousands of documents of its own, and the agencies have been investigating the matter ever since.

"We don't have a conclusion yet, but we are winding up the investigation," TNRCC spokesman Patrick Crimmins said Wednesday, "and we should have a decision in the next two weeks or less. By that I mean, a decision on how to proceed from an enforcement standpoint." In principle, if the charges of violations prove accurate, Alcoa could face civil penalties of $27,500 per day for each violation.

Alcoa denies that its facility repair during the Eighties constituted major modification under the law, arguing that the work was only normal maintenance. Alcoa spokesman Bill Miller of the Austin public relations firm HillCo Partners told the Statesman, "The notice of intent to sue is simply an attempt to apply political pressure on the TNRCC during their ongoing investigation." Wednesday, Alcoa-Rockdale representative Jim Hodson said he is consulting with the company's Pittsburgh corporate headquarters on a formal response to the lawsuit notice and hopes to have a further response in a few days.

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Air to Ground

Between beers and Cajun/country down at the Broken Spoke, talk of a lawsuit among the Neighbors didn't seem either an idle threat nor a bureaucratic maneuver. "They think they've got a strong case, and they fully intend to sue," said Neighbors board member and Elgin attorney Michele Gangnes of the lawyers preparing the case. "These are attorneys [Reed Zars of Wyoming and George Hays of San Francisco] accustomed to this kind of litigation, and they've had success against companies -- utilities and others -- who had done this sort of thing in the Northeast and the Tennessee Valley."

Austin attorney David Frederick is also working on the case (coordinated here by the local chapters of Environmental Defense and Public Citizen), and said bluntly, "We can sue after the 60-day period if there's no agreement -- and if there isn't one, I'll bet we'll sue pretty fast." Frederick acknowledged that the Bush administration's declared energy-friendly policies -- not to mention the current wartime atmosphere -- might have some influence on the EPA's enthusiasm about enforcement, even if the agency has the right and the evidence to sue Alcoa as well. But Gangnes noted that this is not the only problem Alcoa faces -- its application for a proposed new Three Oaks mine is pending before the Railroad Commission, and the company is still trying to remedy deficiencies raised by RRC staff. "Only then can they request a hearing," Gangnes said, "and they know we intend to contest [their proposal]."

Neighbors for Neighbors president Billie Woods said the organization's goal, in the pending lawsuit and its other actions, remains to convince Alcoa to "clean things up," and ultimately to switch to a cleaner-burning fuel (natural gas) -- which would also eliminate the need for the new strip mine and the massive excavation and water-pumping that would accompany it. "That's what we're still calling for," Woods said. "We're doing everything we can do to turn Alcoa into a good neighbor."

But don't look for Alcoa's corporate officers to be dancing country down at the Broken Spoke, any time soon. n