Despite record fines and the threat of criminal charges, it's business as usual.
BY BRETT BURSEY
Shortly before dawn on the morning of Dec. 28, 1993, Johnny Miller
was making up for lost time. Miller, a feed line operator at the
ThermalKEM incinerator outside of Rock Hill, had spent the last five hours
in a "moon suit" cleaning out trash that was blocking the feed line into
the 2,000-degree furnace.
"If we don't burn, we don't earn," is the motto at ThermalKEM, and
Miller had been shut down for much of his shift. When his supervisor
asked, "Johnny, are you going to be able to make up your feed plan?"
Miller knew what he meant.
The "feed plan" is the schedule of loading the maximum amount of
flammable toxic waste into the incinerator that state and federal permits
allow. If the incinerator is "overfed," the waste doesn't burn completely
and illegal levels of pollutants are released from the stack.
If the overfeed causes too much pressure or heat, the thermal relief
valve opens and spews toxic waste into the air.
Miller, a Rock Hill native, had worked at ThermalKEM for two years.
The nearly $15 an hour he was making encouraged him to do things "the
ThermalKEM way" by overlooking a few government regulations.
Miller had been overfeeding the incinerator for about four hours when
he noticed a commotion in the control room. "What's going on?" he
yelled.
"The temperature's going up, can't get it down,"
shouted a worker in the control room. "Are you still pumping?"
All eyes went to Miller's gauge. The switch was off, but the pump was
still feeding liquid waste into the incinerator. Moments later the stack
blew.
Miller later wrote up his shift report showing
that he loaded waste according to the feed schedule. Neither the hours he
spent down nor the overfeed he used to make up for it were included in the
report.
The event prompted a company disciplinary hearing
on Jan. 6, 1994, at which Miller told management it was routine procedure
to overfeed the incinerator and falsify paperwork. It would be a federal
crime for the company to condone such behavior.
Two day later, Miller was fired for violating company policy against
overfeeding the incinerator.
Two weeks after getting fired, Miller called Columbia environmental
lawyer Bob Guild. Miller knew Guild as the lawyer for the citizens group
fighting to close ThermalKEM since 1988.
"You're the last person I would come to," Miller told Guild, the man
the company would most like to stuff in the incinerator, "but I need
somebody whose loyalty to this fight could not be questioned."
Miller's story provided Guild with the first hard evidence of
intentional misconduct. While the company had been cited and fined
repeatedly by DHEC and EPA since 1990 for violating the terms of its
permit, this was the first solid evidence of criminal activity at
ThermalKEM.
Guild agreed to represent Miller in a "whistle blower" case against the
company before the U.S. Department of Labor. When the case went to trial
in June 1994, seven current and former ThermalKEM workers testified that
overfeeding the incinerator and "making the paperwork fit" was "condoned
and endorsed" by the company.
The Labor Department judge upheld Miller's firing but said, "It is
apparent that during the time period in question, numerous employees did
not follow the feed plans, fed the incinerator at will, made up missed
feeds and falsified paperwork." Miller is waiting for a final ruling on
the case.
Concerned that Miller's testimony about why he was
fired could get him arrested, Guild negotiated an immunity agreement with
Ben Hagood of the U. S. Attorney's office. Hagood refused to comment on
the existence or status of a criminal investigation.
In the early 1970s, Walter and Peggy Neal bought 45 acres near Rock
Hill and opened a solvent recycling business. Neal planned to distill old
paint and solvents to recover usable chemicals and burn the residue in
open pits.
Directly across the street from Neal's operation
lies the historic Nazareth Baptist Church. Smoke and fumes from the fires
would often make members of church, founded in 1859 by the slave ancestors
of today's members, cry and cough during services.
Industrial Chemical Company was a low-tech operation that was ignored
by state and federal regulators. At one point, more than 100 thousand
drums of waste littered the site, many of the barrels rusted and leaking.
Residents say that exploding drums sounded like shotguns going off.
In 1979, a spectacular fire launched hundreds of exploding barrels
into the night sky. Nearly 75 residents living within two miles of the
site were evacuated. It was the first hint many of them had that the
operation posed a threat to their health.
Jack and Doris Lewis organized their neighbors to attend ThermalKEM's
first licensing hearing before DHEC in February 1988. The Lewises had been
living on Robertson Road for a decade before the company moved in about a
half-mile away.
Jack Lewis had retired in 1987 after 30 years with Celanese Chemicals.
He was chronically ill with a diseased liver that the family and doctors
attribute to his exposure to the benzene he worked with at Celanese.
Ironically, Celanese disposes of its waste benzene at
ThermalKEM. Lewis' occupational hazard had literally followed him
home.
"In 1988, the odors from the plant were so bad
that Jack would wake up coughing and short of breath," Doris Lewis
remembers. "He said he knew when they were burning benzene."
The Lewises, with help from the Board of Deacons at Nazareth Baptist,
formed Citizens for Clean Air and Water to mobilize local resistance to
Thermal-KEM. The first protest march in 1988 started at the church.
Melvin McCullough, head deacon at Nazareth, believes his congregation
is victim of environmental racism, a trend of hazardous industries
locating in minority communities. It wasn't hard to get neighbors to sign
petitions opposing the company's license, and when Lewis recruited Dr.
Paul Sacco, he found another formidable ally.
Sacco was director of the Biological Sciences Division at Xavier
University in New Orleans for 18 years. At 84, Sacco is retired and serves
as the president of CCAW. When not studying computer printouts of
ThermalKEM releases, he tends to a 60-acre farm a mile or so from the
plant. The farm's cattle and fish ponds have been identified in company
documents as the "primary receptor" for dioxin releases.
In 1988, "Jack brought me a stack of papers from DHEC and the EPA that
he couldn't understand and asked me for help," Sacco says. "I just got
roped in."
Sacco was able to back up Lewis' claims of permit
violations by analyzing the company's own records. "I studied their log
and gas chromatograph records of what they were burning and found the
reason for the black smoke was they had run out of fuel for the upper
chamber. The upper chamber is like a catalytic converter, if it's not
working, the waste isn't all burned and goes out the stack."
Jack Lewis died in 1991, but not before giving ThermalKEM considerable
grief and after breathing a fighting spirit into the community.
CCAW's multiracial crew continues to meet at Nazareth Baptist. Last
month, they decided to put a sign up in front of the church urging
ThermalKEM workers to come forward with information about environmental
crimes at the plant.
"I organize a garage sale every time we need money," Doris Lewis says.
"Dr. Sacco takes care of the paperwork." That paperwork includes keeping
the group's concerns before DHEC, EPA and politicians. He recently sent
letters to corporations that interested in buying the facility, advising
them of ThermalKEM's many problems.
Those involved in the community's long battle sing the praises for
Guild's contribution to the effort. "We never got any action from DHEC
until Bob got involved," Sacco says. "Bob stands his ground and cites the
laws, regulations and conditions of the permit that DHEC itself doesn't
understand. He's worked hard for the past six years and never been paid a
dime for his legal work."
Corine Lumpkin remembers the night of Jan. 14, when she and her
6-year-old niece, Latika, coughed themselves awake. "We thought there was
something wrong," she says. "I live less than a mile from the plant, and
at about seven in the morning a man knocked on our door and said there was
a fire and an explosion, and that we could leave if we wanted to.
"They lied about what happened that night," Lumpkin says, and the
facts seem to back her up. The company reported that "about 500"
containers of hazardous waste were lost in the fire. A week later, DHEC
announced that 1,879 drums went up in smoke. A ThermalKEM spokesperson
said they "initially forgot" about the other 1,379 drums.
The company also insists, and DHEC agrees, that smoke from the fire
rose directly up and dispersed in the rain. But CCAW has obtained a
private video of the fire that shows huge clouds of black smoke billowing
out of the burning warehouse, hugging the ground and pouring into the
neighborhood.
Lumpkin packed up her family and spent the day at Nazareth Baptist, just
97 feet on the other side of the facility but upwind and out of danger.
The fire burned out of control for 12 hours, releasing
the contents of nearly 2,000 drums of waste. York County emergency
personnel would not fight the fire because ThermalKEM couldn't tell them
what was burning.
"I've always had a good garden," Lumpkin says. "I planted twice this
year but nothing came up. I don't know if it's safe to have a garden
now."
While record fines, public scrutiny and the threat
of criminal charges have forced ThermalKEM to try to clean up its act,
Sacco says, "There is no way that plant can operate safely. It must be
shut down."
In the late 1970s, Congress began learning the
hardlessons from decades of dumping hazardous waste into the ground.
Tragedies such as Love Canal, where toxic chemicals ended up in a New York
community's drinking water, prompted the 1976 passage of the Resource
Conservation and Recovery Act.
RCRA began to encourage the burning of hazardous chemicals, giving
birth to the toxic waste incinerator industry. During the four years that
it took EPA to write the regulations governing incineration, Neal got an
interim status permit to burn toxic waste at the Robertson Road
site.
With the help of a Small Business Admin-istration
loan, Neal bought an incinerator. In 1983, under growing pressure from
DHEC to clean up the site, Neal sold the operation, along with the interim
permit, to the British-owned Stablex Company.
The site was grossly contaminated, and the little incinerator that one
DHEC official said looked like an overgrown garage heater was never used.
What Stablex was really after was the interim permit.
DHEC transferred Neal's permit to Stablex, and allowed it to build the
incinerator that is still used today.
In 1986, Stablex sold the operation and the valuable interim permit
to a German company called NuKEM. NuKEM created a subsidiary called
ThermalKEM to operate the incinerator.
NuKEM didn't have any incinerator experience when it bought the Rock
Hill site. The company did, however, have quite a record for handling
nuclear material in Europe. In 1988, the German government tied the
company to more than $10 million in bribes and illegal shipments of
weapons grade nuclear material to Pakistan and Libya.
NuKEM was found to be at the center of a criminal enterprise to fix
prices on handling nuclear waste and to divert nuclear materials to Third
World black markets. The investigation ended without convictions after the
NuKEM exec in charge of shipping nuclear fuels committed suicide while in
jail.
Legislation that would require DHEC to consider a
com-pany's past record of environmental crimes when considering a
pollution permit was defeated by Republicans in the last legislative
session.
The incinerator operates 24 hours a day with few
modifications since it was built in 1983. Despite two changes of corporate
ownership, the facility is still operating on the temporary permit granted
to Walter Neal in 1981, before the present incinerator was even built.
DHEC's relationship with ThermalKEM took a noticeable
turn for the worse after the company sued DHEC in 1990 for not letting it
add a second incinerator to the interim permit.
The second incinerator was important to ThermalKEM and other waste
handlers. In 1990, the state legislature finally responded to the reality
that the entire nation was dumping industrial offal in South Carolina and
passed a law that requires an assessment of instate need for new or
expanded waste facilities.
This law hurt companies like ThermalKEM who regularly receive well
over 90 percent of their waste from other states.
The law also prohibits siting a hazardous facility within 2,000 feet
of a church, school or residence. Under the new restrictions, ThermalKEM
could not be built on the present site.
ThermalKEM's lawyers, the firm of Nelson, Mullins, Riley and
Scarborough, arguably the biggest hired guns in the state, sued DHEC with
the hope of removing the instate needs assessment from the law. The Riley
in the firm is former governor and current Sec. of Education Dick Riley.
The case is still pending in federal court.
"Riley allows himself to be used by these corrupt interests," Guild
says. "You get more for your money when a former governor represents your
concerns. You buy a cushion from regulatory oversight and prosecutoral
scrutiny."
Before August 1990, DHEC's regulatory oversight
consisted of an annual inspection that was scheduled with ThermalKEM
management. That August, EPA conducted a surprise inspection. Upon finding
violations, EPA turned the enforcement action over to DHEC.
Under pressure from EPA, DHEC issued the first civil penalty against
the company: $90,000 for overfeeding the incinerator and for having far
too many emergency releases.
Two years later, EPA sued Thermal-KEM, seeking penalties of up to
$25,000 a day for overfeeding toxic metals into the incinerator. The
metals, including highly poisonous mercury, are not burned in the
incinerator or captured by the pollution equipment but are vaporized and
returns to the earth and water, where they enter the food chain.
While DHEC claims ignorance when it comes to the source of the
mercury, 13 rivers in South Carolina have been closed to fishing because
of high mercury content in the fish.
In September 1994, DHEC hit ThermalKEM with a $535,000 fine, the
fourth-largest in the agency's history, for a laundry list of violations.
The 38-page order also hinted at the possibility of future criminal
charges.
This July, EPA settled the three-year legal battle
with ThermalKEM with a $750,000 fine. The company was charged with
exceeding levels of toxic metals that could be incinerated on 478 days,
starting in 1989. The fine could have been set at nearly $12
million.
Mike Mattes is the new boss at ThermalKEM. He's quick
to assert that since he came aboard a little over a year ago things have
gotten better at the beleaguered company. Mattes blames the company's
problems on poor communication by the plant manager he replaced.
He says that the dump stack has only opened a few times in 1995 and
that the company is taking measures to prevent another fire. But Guild
doesn't buy that. He says that the main change relating to the dump stack
is simply the way releases are counted. "They now call dump stack openings
unplanned releases.' If they anticipate the release, it doesn't
count."
Mattes doesn't volunteer the fact that the fire,
which happened on his watch, released 200,000 pounds of untreated toxins
into the environment.
In August, ThermalKEM's owner announced that the plant was for sale.
While acknowledging that the continuing battle with CCAW for a permit to
operate the facility "could be an impediment" to the sale, NuKEM's chief
executive Hans Pirk says that prospects for finding a buyer are "very
good."
Pirk cited a declining market, tough competition
and the expectation of stricter environmental rules as reasons to
sell.
Plant manager Mattes says that the possibility of
criminal charges and more fines won't scare off prospective buyers. "This
is a highly regulated industry. Anybody in this business won't be put off
by [pending charges]."
At DHEC, the word on possible criminal prosecution of ThermalKEM is
that it will be up to the U.S. District Attorney to press the issue. DHEC
doesn't have the firepower to go up against Riley's law firm. The York
County prosecutor and Attorney General Charlie Condon don't have the
will.
Guild argues that DHEC has the power to order the
plant be immediately shut down for repeated and willful violations of its
permit.
"They have the authority," Guild said. "They just
don't have the backbone."
The appointment of Beth Caldwell as the environmental crimes
prosecutor in the U.S. Attorney's office raises concern among
environmentalists. Caldwell was a lawyer for EPA in Atlanta before coming
to Columbia to work for then-Fifth Circuit Solicitor Dick
Harpootlian.
This year, Caldwell took the job of environmental enforcement with South
Carolina U.S. Attorney Pete Strom. The hottest environmental crime
investigation in Strom's office is the ThermalKEM case.
One of Thermal-KEM's lawyers at Nelson, Mullins is Dwight Drake. Drake
also is a lobbyist for ThermalKEM and is the husband of Beth
Caldwell.
"Certainly we're aware of Nelson, Mullins'
representation of a number of companies that impact on the environment,"
Strom says. "And we know that Dwight Drake has represented ThermalKEM.
Anytime that Nelson, Mullins represents a company on environmental
matters, Ms. Caldwell is recused from the case."
Strom says, "Nelson, Mullins has created a wall to insure that Dwight
Drake doesn't engage in a conflict of interest. While that may satisfy the
legal issues, I feel strongly about the appearance of impropriety and
accordingly, Ms. Caldwell is off all cases involving Nelson,
Mullins."
Strom took office pledging that "if a corporation
makes a business decision to violate environmental laws, we are going to
make a business of prosecuting them." But since he's been in office there
has been more frustration than prosecution. "It is unfair to the citizens
around these sites as well as the corporate citizens for the federal
government to take several years to resolve these matters."
"The good news," Strom says, "is that the EPA is moving two
investigators to help prosecute environmental crimes into our Charleston
office."
While Strom refuses comment on the existence of
pending criminal cases, he does say, "We have received over 1,000 pages of
documents [on ThermalKEM] that are being researched at this time."
While large civil violations and possible criminal charges are
pending, the company is still fighting for a full permit to operate the
plant, as well as trying to sell the place.
The next round in the licensing proceedings will take place later this
fall. Should the permit be granted or denied, the opposing side is sure to
appeal, dragging out the process for several more years.
"The worst-case scenario," Guild says, "is they could sell the
facility to someone who could argue, Wait a minute, that was ThermalKEM,
not us.' The permit could be transferred and the new owner take up where
ThermalKEM left off, without all the negative history.
"The best-case scenario is for DHEC to deny the permit and hold
ThermalKEM responsible for closing and cleaning the site."
At the last CCAW meeting Guild told the long-suffering members, "We're
on the verge of killing this monster. It's time to drive a stake through
its heart to keep it from rising from the grave!"
Meanwhile, a few hundred yards from where the angry citizens gathered
to exorcise the threat from their community, the monster, nonplussed by
all the attention, continues to spew its bile in their direction.
