What Fouls the Air? It's Secret, Say Companies

By: Kevin Carmody

Texans could soon lose their right to know exactly what pollutants an industry is dumping into the air they breathe.

For a quarter-century, the emissions data that companies submit to Texas environmental agencies have been public information that must be disclosed on request. A community's right to information affecting its health is so basic it even trumps a company's claim that the emissions data are a trade secret, then-Texas Attorney General John Hill ruled in 1975 and 1976.

Today, about three-fourths of the petrochemical companies that seek air pollution permits from the Texas Natural Resource Conservation Commission try to assert trade-secret protection for at least some emissions data, as their counterparts are doing nationwide. And there are signs that the Texas attorney general's office is tilting in favor of some of those claims.

The owners of the proposed American Acryl chemical complex near Houston won an attorney general's office ruling in 1999 that some of the company's projected emissions data could be protected as trade secrets. The informal opinion, which is not binding in other cases, blocked public access to details about annual emissions of about 4.5 tons of chemicals, at least some of them toxic solvents. With its permits still contested, American Acryl recently asked a Travis County judge to seal sections of the record of the 1999 state hearing on its permit application, including the emissions information.

At an Oct. 31 hearing, Assistant Attorney General Brian Berwick agreed that the legal requirement to release emissions data might extend only to the names of the chemicals, not the amounts of each.

If District Judge Margaret Cooper accepts that, it may prompt a formal change in the attorney general's policy and effectively block the release of some emissions data for many chemical plants, said Randall Terrell, the Austin lawyer for Harris County residents who are contesting American Acryl's air permits.

Cooper said she may rule Wednesday on what information should remain sealed.

A spokesman for the attorney general's office declined comment on the case or its significance. Under Texas law, the conservation commission must treat a company's trade-secret claims as legitimate unless someone asks for access under the state's open records law. If there is any question about the law, the commission asks the attorney general for an opinion.

Knowing the amount of each chemical released into the air is critical in assessing whether it poses a health risk, said Tamara Maschino, one of the residents Terrell represents. "Sealing this information means my neighbors won't really know anything until it starts making them sick", she said.

The public versions of the state permits do not list the names of the trade-secret chemicals, instead grouping them under several generic categories and listing emissions totals for each group. The company Web site lists the names of all chemicals possibly emitted, but not which ones are protected as trade secrets.

American Acryl spokesman John Gehbauer says the Texas Natural Resource Conservation Commission received all emissions data and has analyzed it, so the public can be confident there is no health risk.

But blocking public access to such data can prevent the kind of independent analysis by citizen groups that shows whether or not state toxicologists are protecting the public, said Terrell, who occasionally represents the Austin American-Statesman.

The company acknowledges it may seek trade-secret protection for any reports showing actual emissions of each trade-secret chemical once its facility opens early next year. Terrell said that means the public would have no ability to determine whether the company is exceeding the projected emissions totals for those individual chemicals, or whether the conservation commission fails to take action on evidence of a permit violation.

Texans have used access to commission records to push the state to pursue polluters more aggressively. The commission is currently investigating whether documents a citizens group found in commission files show that Alcoa Inc. has for decades emitted more pollution than allowed.

"How do you know if they are breaking their emissions limits if you don't really know what those limits are?" Terrell asked. "You could see an entire enforcement case being determined to be confidential."

The $150 million American Acryl project is a joint venture of NA Industries Inc. and Atofina Chemicals Inc., the North American subsidiaries of Japan's Nippon Shokubai and French-based Total Fina Elf S.A., respectively. Now under construction, the two-plant complex at Pasadena's Bayport industrial park will produce acrylic acid, which is used to make household products including disposable diapers and detergents.

The company argues that information about the bulk of its emissions - about 445 tons a year - will be public. Its lawyers say the rest is a trade secret because a competitor could, through reverse engineering, figure out the company's manufacturing processes.

Molly Cagle of the Vinson & Elkins law firm, which is representing American Acryl, has argued that the attorney general's 1975-76 rulings are outdated because they were issued long before computer simulations became sophisticated enough to use emissions data to figure out the ingredients in a chemical recipe.

At the chemical industry's request, the U.S. Environmental Protection Agency is now assessing whether the release of separate pieces of information required under law allows competitors to piece together companies' trade secrets.

"This is an argument that has been showing up in the past several years", said Neil Carmen, clean air director for the Sierra Club's Lone Star Chapter. "They say it's to protect information from competitors, but in most cases I think they're trying to hide information from the public."