Andy Driscoll, a writer and communications consultant in St. Paul, Minn., is a founding organizer of Citizens Alliance for a Safe Environment (The CASE).
Monday, 13 May 2002
ST. PAUL, Minn.
July 2001: It’s decided. We’re going to take legal action.
Here’s why: With nary a question nor an environmental impact statement, the Minnesota Pollution Control Agency issued Gopher State Ethanol a permit to pollute based entirely on lies contained in the company’s application. The MPCA told us, the residents of St. Paul, that only an environmental action worksheet was necessary to determine the potential adverse effects of converting a century-old brewery to the first and only ethanol plant in the world.
That was in 1999, or around there. The dates get blurry, what with the whirlwind of activity.
Now everyone wants to know: What was MPCA thinking? Has our regulatory system for preserving decent air quality broken down completely?
The answer, apparently, is yes. More than a year ago, nearly every Minnesota citizen within a four-mile radius of the ethanol plant woke up one morning choking. What had been their friendly neighborhood brewery was now spewing the rancid fumes of fermenting corn and its byproduct, carbon dioxide.
The foul plume blanketed most of this city of 250,000 and many of its southern suburbs and sister cities. Suddenly, those living in the shadow of this stately old German-influenced building were throwing up in the streets. Noise that sounded like a jet aircraft in the backyard startled them out of their sleep in the small hours of the morning.
It wasn’t quite as bad up on the bluff, but bad enough to earn the ire of the city’s more affluent power brokers. Judges, mayors, lawyers, doctors, and other well-heeled citizens spent that summer the same way as their working-class neighbors: pinching their noses and swearing under their breath. Relief came only when the winds shifted — and then only at the expense of our friends on the other side of the city and outlying neighborhoods.
The West 7th/Fort Road Federation, one of the city’s 17 district planning councils, was the first organization in the area to raise a ruckus. Its offices are less than a block from the plant, and the group had originally been advocates for bailing out the doomed brewery in 1991, when the Heileman corporation prepared to shut the place down. A buyer was found: Bruce Hendry, an investor recruited to keep the 200-plus jobs intact with $10 million in city money and loan guarantees.
With Hendry only interested in sapping from the brewery whatever profits he could without any real improvements to the brew or the brewery as a workplace, the enterprise was a failure from the start. The company’s first brew, Landmark, was an unmitigated disaster of a beer, according to every beer-drinker in the upper Midwest. Hendry refused to adequately fund his factory’s renovation, failing to mitigate its dangerous asbestos flaking inside, failing to keep the facility free of filth, including glass shards which caked the floors and free-floating silica, and failing to keep clean it’s 19th-century restrooms. He was far more interested in seeking ways to extract more public dollars — and he found a gold mine in federal and state subsidies for producing ethanol from corn, much as several other rural breweries had done with fair success.
When Hendry and his new CEO came a-calling to the Minnesota legislature for their share of the ethanol pie, they assured local politicians and representatives that this was the job-saver of all time. State and federal policy assured a major market for ethanol by mandating its use in high percentages in every gallon of gasoline sold here. In testimony before the legislature and in the application for an air quality permit from the MPCA, Hendry and co. claimed that the environmental effects of ethanol manufacture amount to little more than a slight smell of roasted corn.
No one, least of all the Air Quality Division of the MPCA, bothered to require an independent assessment of the refinery’s likely emissions, so the permit was granted and demands for an environmental impact statement were brushed aside. The company’s bought-and paid-for environmental action worksheet was sufficient, said the folks at MPCA. And besides, they said, we no longer regulate “odor.”
But they do regulate emissions of certain chemicals embodied in that “odor,” and they do regulate noise — with standards that the plant violates by many decibels, especially after 10 p.m. every night. Still, the MPCA and the city have done little but wring their hands so far. So we’re looking for legal eagles.
Tuesday, 14 May 2002
ST. PAUL, Minn.
It’s quiet around here. Makes me edgy. A few of weeks ago, we settled our lawsuit against Gopher State Ethanol, requiring the plant to cut back on noise and odor problems.
Lately, I’ve been swamped with my “real” work (writing, graphic design, and consulting to nonprofits and small business), which I conduct in my home office perched within view of the ethanol pant that shut my windows from the stifling summer air a couple of years ago. Emphysema and asthma can spawn activism. (Breathing is essential to life, it seems.)
But I’m unsettled because this fight is far from over. The human tendency to see settlements as closure has left most of us activists in a twitchy, cynical limbo — and the story has essentially vanished from the consciousness of St. Paul residents. Interest started receding when what we thought would be a technological savior — a thermal oxidizer — stopped broadcasting the rancid smell of fermented corn citywide and kept the plume at the local level. The fix wasn’t adequate, but it helped the company and politicians to marginalize us.
We sit now, catching up on other aspects of our lives, awaiting a judge’s ruling on a motion finally filed by the St. Paul City Attorney to find GSE in contempt for its failure to get noise levels within legal limits. It took city too long to act. Last December, it settled a nuisance suit against the company. That led to court reprimand, memorializing the settlement’s weak requirements. Despite official readings of high noise levels as proof of violations, city litigators still refused to cite the company for continued violations. This went on for four months — until a major push from the City Council forced the litigators to start paying attention to their jobs.
The company’s a shrewd one. They know when the bureaucrats go home for the weekend, most to their suburban air. At 5:00 p.m. on Friday afternoons, the refinery kicks into high gear and the neighborhood is again choking on the sour smell, staying up nights with the roar of fans and coolers. No one from the city government is around to smell or listen — or measure anything until early Monday morning. Suddenly all the activity stops.
Before our group decided to pursue legal action, about 10 people met for months, discouraged over the GSE’s public relations attempt to involve citizens in solving its problems. I wasn’t a part of that group. I empathized with those who were — who demanded action from the Minnesota Pollution Control Agency, the City of St. Paul, and Minnesota Brewing, owner of the ethanol refinery and its sister carbon dioxide producer, MGCO2, to reverse this foul plume of noise and chemical blanketing the city.
Many women, and a few men, rose up in fury in the late summer of 2000 over the negligence of company officers, public power brokers, and regulators in stopping this invasion of sickness on the community. One, a nearby resident steeped in holistic health and the arts, Therese Goddard, wound up her energy and, with her artist-musician husband, Bob, began a crusade to organize their neighbors and the community newspaper to fight the adverse changes in their living environment.
After another outspoken resident activist (a lawyer whose firm actually represents the company’s board and who serves as vice president of the West 7th/Fort Road Federation), the respected Minnesota Center for Environmental Advocacy decided to enter the fray publicly. MCEA lawyer/advocate, Janette Brimmer, had already been on the case behind the scenes. More neighborhood people, including another woman who had been organizing community meetings against the plant, Mary Madden, herself a lawyer, joined this enlarging group. Betty Moran, the community organizer for the federation, and Carol Mollner, who was raised in the area and whose family still lives there, sat in — as did Sharon Pfeifer, a state employee who choked on fumes a mile up the hill. Because I was president of the board of the West 7th Community Center, a long-standing multi-service center of human services and socializing, I was asked to join the strategy sessions for the group.
We thought we could move the MPCA and the city into an enforcement mode. To buttress our case, Janette tried valiantly to coax the MPCA and the city’s Department of Licensing, Inspection and Environmental Protection into using appropriate experts and data she had at her fingertips. Fat chance. By spring, the group had grown and included fed-up neighbors — independent carpenter/woodworker, Darren Wolfson; a young couple, Terry and Shelley Markley, who work respectively for St. Paul’s Public Works Department and a major catalogue marketing company; and Lisa Shaffer, a Blue Cross-Blue Shield systems analyst. Another young couple, Ross and Armaiti Winberg, joined the group a bit later.
Most of this band would become the plaintiffs in our little legal enterprise. Now, to find a lawyer willing to step in this breach — pro bono.
Wednesday, 15 May 2002
ST. PAUL, Minn.
Shoulda known it was too quiet yesterday.
I got home only to be greeted by a long-awaited report on a “study” by the Minnesota Department of Health on ethanol pollution. After wondering out loud to my anti-ethanol colleagues why I hadn’t seen the thing, and whining about what I thought was an intentional plan to keep it out of my hands, I located the entire document online, downloaded it, and printed it — only to find a copy in my mailbox an hour later.
This is the stuff of paranoia.
Now, having read the report, I am enraged again — which seems right to me. I sometimes wonder why anger is so energizing — yet often unproductive. Living on the edge gets addictive, I’m afraid.
Oh, yes, the newspaper had written a sop piece on the study’s release a couple of weeks ago, lazily reporting from an executive summary that MDH and the Minnesota Pollution Control Agency found no “exceedances” of “HRV (health risk value) criteria.” In fact, the report strongly suggests that there isn’t enough data to properly assess the health hazards.
This is the stuff that makes us crazy. Any decent reading of this thing they’re calling a study has us tearing our hair out over all its internal self-contradictions and lack of supportable conclusions — all presented as highfalutin, highly official fact, of course.
For example, the report claims that none of many dozens of chemicals measured at numerous sources is present in sufficient quantity to be hazardous to the public health. Yet, elsewhere, it recognizes the dangers of touching or inhaling the following substances emitted at the study sites: acetic acid, lactic acid, ethanol, acrolien, 2-furaldehyde, methanol, glycerol, acetaldehyde, benzene, furfural, formaldehyde, styrene, methal ethyl ketone, m.p.-tolualdehyde, crotonaldehyde, 2-furancarboxaldehyde, THC (total reduced hydrocarbons), NOx (nitrous oxides), sulfurs, dimethyl sulfide, toluene, benzaldehyde, nitro-methane, methyl butanal — and on and on though about 100 chemicals, few of them naturally occurring in the air we breathe.
Not hazardous? Here’s a hint: Anything with “aldehyde” in its name is a known carcinogen. Of course, we won’t know about that devastation until after the community has been exposed to this fouled air for years.
The other major flaw in all of this gobbledygook is that while the data for much of the report comes from state and federal environmental health experts, their work concluded in October 2000 — more than a year and a half ago. Subsequently, the company’s hired consultants challenged those measurements, and the MPCA and the MDH (and probably the feds at their behest) have relied ever since on data supplied by those company consultants and the company itself.
In other words, the company is one of the sources cited in the appendices as contributing to the conclusion that this ethanol plant is not hazardous. Surprise, surprise!
Meanwhile, just last week, the U.S. EPA reported that (according to the Associated Press), “Factories that convert corn into the gasoline additive ethanol are releasing carbon monoxide, methanol, and some carcinogens at levels ‘many times greater’ than they promised.”
And there’s more: “Recent tests have found emissions of volatile organic compounds (VOCs) ranging from 120 tons per year for some of the smallest plants, up to 1,000 tons annually, EPA officials said. It isn’t known whether the chemicals are hazardous to nearby residents, they said.”
Not known? Then why are they even measuring this stuff? They measure it, then tell us they can’t tell us anything. For this sort of “public interest” work, the taxpayers shell out billions every year. For their money and their trouble, they get double-talk and PR spin, rather than the regulation the public deserves and expects.
Asked about all this, an MPCA official had the gall to say that Gopher State Ethanol is one of two Minnesota facilities in compliance. Based on information from October of 2000?
It’s no wonder that Joe and Jane citizen are left despairing and feeling powerless to preserve their health and, especially, the health of their children and elderly parents. These are the people who get up each day, try to make a living, and want to come home to a safe atmosphere. Some of them are even willing to fight for a safe atmosphere, but it’s an uphill battle, because everywhere you look, someone is covering their ass, mostly because they made lousy judgments to begin with.
Now we have an EPA report that makes it perfectly clear, notwithstanding the claims of this and other ethanol plants, that there are human health issues at stake, and bureaucrats and politician are trying themselves in knots to keep from admitting their massive errors and/or naivete. Even now, the company claims, as does the MPCA, that this plant is meeting all required standards.
Of course, it’s all smoke and mirrors. So are the “standards,” all written by those who have a stake in keeping them high enough to make a profit, then providing comfort and haven for regulators who don’t want to regulate.
So much for quiet, I guess.
Thursday, 16 May 2002
ST. PAUL, Minn.
Well, it happened again. In my zeal the other day to name my colleagues in this legal battle against Gopher State Ethanol, I left a name off the list, and of course, she noticed. I should be ashamed of myself: Dori Ullman is one of my best friends and a person who never fails to step forward when her community calls. Maybe because I’m so used to that, her name slipped from my head. When you work closely and intensely with many people for many months, you have to mentally “go around the table” when listing your allies, and sometimes the most familiar get skipped over.
Dori’s one of those people for whom the term “trenches” was invented. Never mind the task, never mind the commitment required, she is among those who always nod, never shake, their heads.
She’s also among those who are still waiting for that court ruling on the city’s motion citing Gopher State Ethanol with contempt for failing to meet the terms of the settlement. I’m waiting, too, but to be honest, I don’t even know if winning will make any difference. That ruling will be appealed, and while the appeals process drags on, GSE will continue to violate the promises it made to relieve the city of noise and odor pollution from the ethanol plant.
Not that I regret this courtroom battle. The legal eagles working on our behalf have proven themselves among the most capable I’ve ever seen; we were lucky to stumble onto them. At the time, all that existed to counter the ethanol plant was a little ad hoc committee organized under the auspices of the Minnesota Center for Environmental Advocacy. The committee members (myself included) set about looking for ways to force public agencies to do their jobs, and decided that to do so, we needed outside legal help. MCEA’s charter prevents the organization from representing small citizens groups in civil cases, meaning Janette Brimmer, the center’s attorney who had been helping us, had done all she could.
So off we all went to see who would be nuts enough to take on our cause. I happened to be working on a candidate’s campaign for the St. Paul School Board at the time, and was walking out of a committee meeting one evening with a colleague, attorney Mike Unger, when it dawned on me: maybe Mike. He works for a pretty big firm. And living in St. Paul, he suffered from the ethanol-fouled air in his own neighborhood.
“Say, Mike, ol’ buddy, ol’ pal. How would you guys like to take on a solid environmental case — pro bono?” I asked, feeling pretty sure that he’d laugh in my face when I mentioned the target.
“I dunno. Tell me about it.”
“A bunch of folks in West 7th who can’t breathe or sleep because of the ethanol plant want to take the company to court. I mean, these people are really sick and tired of what’s going on.”
“Hmmm. I think I like the idea. Let me bounce it off my partners.”
The partners are some of the best lawyers in Minnesota, and probably in the country. Both Mike and his wife are in the firm. Mike’s a partner; Jeanne’s an associate. The firm, Rider, Bennett, Egan & Arundel, is based in Minneapolis, which helped, because a Minneapolis firm has fewer conflicts than a St. Paul one. It’s also one of Minnesota’s top five law firms, so when Mike gave us the thumbs up on representing us, we were ecstatic.
RBEA has treated us as major clients, piling on resources and personnel to supplement Mike as lead counsel. Mike has poured his heart as well as his head into this effort. And his substitutes when he wasn’t available have also been excellent — and in one case, downright brilliant.
Preparing for his contribution to the final arguments in the contempt case, Peter Gray spotted a previous case where the lawyers successfully argued that a lawsuit settlement document was a contract between the parties and that failure to satisfy the settlement’s provision was more than contempt of court; it was breach of contract. When Peter shared this with the judge, he sat up in his seat on the bench and verbally acknowledged that this was a wrinkle he’d never considered. That was fun to watch.
Mike himself must have a photographic memory. Once he takes information in, he can spit it back out with nary a reference to his notes. And his strategy has both surprised us and served us well.
Unfortunately, it’s been a sad few months for Mike. In the midst of this legal work, his mother lay dying of lung cancer at the Mayo Clinic down in Rochester. She died on May 8 — a mercifully peaceful death, but it was a long haul for the family and Mike persevered in his work throughout the ordeal.
CASE is so grateful to this guy and his colleagues, we’ll never be able to express it adequately.
Friday, 17 May 2002
ST. PAUL, Minn.
I have a sort of hangover today, thanks to having broken down and accepted an invitation from a cousin to attend an annual dinner thrown by St. Paul’s downtown power elites. It’s called the Millard Fillmore Dinner, after the hapless U.S. president who stepped off a Mississippi sternwheeler in 1854 as part of a flotilla of seven paddleboats in what was called the Great Excursion. St. Paul was then the navigable northern terminus of the river, and a very young town The cruise started in Iowa. Fillmore lost his bid for re-election as the Know-Nothing Party candidate.
I mention all this history because an ambitious recreation of that event is planned for 2004 as part of an overwhelmingly self-congratulatory series of activities embroiling 40 cities in four states along the river from Iowa, Illinois, Wisconsin, and, of course, this fair Minnesota of ours. A lot of money. A lot of riverfront development.
Oh, how I wish I could be as celebratory as these self-styled renaissance men and women who believe they are reinventing the river as a people-friendly place after 100 years as a commercial highway for grain, garbage, and human waste.
But I can’t. I went to the first Millard Fillmore soiree eight years ago, when no more than 125 people showed up to dine courtesy of the St. Paul Foundation while listening to ambitious plans by a our Democrat-cum-Republican mayor, Norm Coleman, to revitalize the riverfront. Much of that plan has been implemented. And much of it fails to respect the natural order of rivers — no lessons learned after disastrous floods from humans unsuccessfully trying to tame the spring swelling that comes with the melting winter snows.
It’s pretty much impossible for those who toil in the environmental trenches to empathize with this glitzy gluttony while literally four blocks away, an old coal-fired power plant sits adjacent to that same river spewing mercury and hydrocarbons all over the city. A few blocks further sits our nemesis — the ethanol plant — choking city residents on it plume and awakening them in the middle of the night with its racket.
And past and current mayors, both feted last night for “saving our riverway,” are in large part responsible for the pollution because of their support for the corporations that create it and their opposition to those of us trying to stop it.
Last night, 1,600-plus people filled a St. Paul civic center ballroom to hear more of the same spin we heard the first time around — only now the emcee was dressed in a $700 suit and a wireless mike strolling in a political convention-sized space with a quartet of cabaret singers behind him belting out homemade lyrics about this ambitious river project. (They sang the names of all 40 cities participating in this Grand Excursion 2004 and about the wonderful Twin Cities institutions, organizations, and companies that will be involved as well.)
Hobnobbing for the hour or so before sitting down to breaded chicken breasts (we were paying for both the time and the food, by the way), I couldn’t help but notice the agglomeration of strange bedfellows in the place. It was obviously the place to be last night for most of St. Paul’s movers and shakers. I admit to being a scion of some very old and founding St. Paul families, and I’ve been active enough in my years here that I knew at least 50 percent of this crowd. I certainly have made a bunch of enemies along the political way — and here they were en masse, many greeting me (and one another) with smiles and handshakes that belie the battles “out there” for justice and equity.
I suppose they’d all say, “But what we have between us is just politics,” or, “But that’s business, not personal.” But, y’know, I’ve never been able to buy that concept. I take all of this polluting and looting of the public treasury very personally. Why don’t they? How can people like this ignore the real-life impact of their work? How can they bifurcate their minds and their lives — on the one hand producing and defending sickness or death, on the other living as husband, wife, father, mother, or other family member who cares about the health and safety of their own? This compartmentalization of our lives may help us survive the daily wars, but how can we cope with a conscience that would otherwise recoil in horror over man’s inhumanity to man?
Where is conscience?
Last night, at least it appeared to be missing in action, and while I smiled and glad-handed my way around the lobby and exhibit halls, schmoozing with the best of them, I came away full of fair food but hungrier than ever for a more rational merging of all aspects of our lives to create a saner and safer world in which we all can thrive.
What a lousy sort of hangover to wake up with.