February 2004

The dust settles
Cemex fined for air-pollution violations

by Pamela White

For a decade, people who live near the cement plant outside of Lyons have complained to state and county health officials about clouds of cement dust that waft over their properties. The corrosive dust has polluted their homes and even stripped the paint from their cars, they say.

On Monday, Feb. 23, state air-pollution officials slapped cement giant Cemex with more than $282,000 in fines and other fees for violations of state air-pollution regulations pertaining to dust control and particulate emissions. A state official says that the nature of the violations indicates that Cemex may have a problem managing its environmental-compliance program.

The fines are a result of a series of unannounced state inspections that began in March 2003 and continued through the summer and mark the most recent chapter in a history of conflict between Mexican-owned Cemex and its neighbors. That conflict came to a peak this past fall when a whistleblower from Cemex presented the state and Boulder Weekly with videotapes showing deep piles of dust in and around the facility, some of them waist-high. The whistleblower’s actions resulted in a month-long inspection of the plant by worker-safety officials from the Mining Safety and Health Administration (MSHA), a branch of the U.S. labor department. MSHA issued citations as a result of that inspection, but the reports are not yet available to the public.

For Richard Cargill and the St. Vrain Valley Community Watchdogs, an activist group that has formed around the issue of dust control at Cemex, the state’s announcement was welcomed as a big step in the right direction.

"I think this is adequate to get this place cleaned up, and that’s all we’ve ever asked for," says Cargill, spokesman for the group.

Cargill also praises officials from the county board of health and the county health department for taking their concerns to the state and the state health department for following through on those concerns. But he acknowledges that the persistence of neighbors in reporting dust complaints also played a role.

"This has been going on for about a decade," he says of the activists’ efforts. "I think we have a feeling of accomplishment on this."

According to a compliance order signed last week by both state and Cemex officials, violations ranged from visible dust emissions in excess of state limits to incorrectly calculating particulate pollution from a variety of sources to claiming for two years to have a dust-control system on one of their buildings while, in fact, such a system was not functioning.

Paul Carr, the inspector who made several unannounced visits to the plant, said no single violation could be considered more serious than the others.

"I would say all the violations on there are serious in nature," he said. "If they weren’t we wouldn’t be pursuing an enforcement action with regard to Cemex. In terms of which ones are worse, it’s kind of a tough call because they’re all air-pollution, emission-related violations, so essentially they all carry the same weight in terms of [seriousness]."

Carr says he is satisfied with the outcome of the process, the purpose of which is ultimately to bring the company into compliance with air-pollution laws. The enforcement action netted the biggest fine of any enforcement action Carr has participated in during his 2.5 years with the Air Pollution Control Division but is far from the biggest fine in the state’s history. The monetary penalties include $37,460 in administrative penalties, $94,839 for deriving economic benefit from violating regulations and at least $149,849 to be spent on a "supplemental environmental program," the nature of which must still be negotiated.

According to state records, past penalties against Cemex have not exceeded $10,000, making this the Lyons plant’s largest fine to date.

"I think for the most part all of the violations have been corrected, and for the ones that have not been corrected they’ve got a plan in effect to correct them before the equipment goes back on line," Carr says.

Margie Perkins, director of the Air Pollution Control Division of the state health department, says the real issue at Cemex is one of overall management of environmental compliance.

"If I were to characterize it, I think that that’s fair to say–that just the overall environmental management here is a question," she says. "We’ve identified several things, and we hope that as they move forward looking at these specific items that this will help strengthen and improve their overall environmental-compliance management system."

John Lohr, plant manager for Cemex, says he believes the settlement is in line with other settlements involving industry in Colorado.

"It’s a fairly common process for companies to work through with the [Colorado Department of Public Heath and Environment], and I think it was a good method to identify issues and to identify what the operation improvements would be," Lohr says. "The laws, the regulations are extremely complex, and the company did make some errors in the interpretation of some of those."

Lohr says Cemex has made many improvements to the plant and its operating procedures. Among the commitments the company has made is a dust-collection system for its A-frame building.

"We tried to make improvements to the plant, to our operating procedures, to the way that we staff and assign responsibilities, and I’m confident that we have addressed the issues and the problems," Lohr says. "We’ve committed to making some improvements on the equipment. We’re going through the permitting process... In the meantime, we’ve made a lot of changes to the operation, including doubling the hours of the sweeper and the water truck operation, reassigning personnel, being more specific about their tasks and responsibilities."

The company also has a new environmental compliance manager, Lohr says.

"That individual has that authority–and, in fact, all the way down to our hourly employees, they have always had the authority–to shut down operations to do what is necessary to ensure compliance," he says.

But neighbors say this should be only the beginning of close scrutiny by regulators of Cemex’s operations.

"For the regulatory community, for the state and for the county, it’s a very good beginning, and we look forward to even closer scrutiny in the future," says Lou Dobbs, who has lived next to Cemex for eight years.

Dobbs says the fine itself is insignificant.

"Cemex is a $6.5-billion company, and this is just pocket change," she says. "The thing that really makes me craziest of all is that they refused to take responsibility for the harm they continue to inflict upon the community."

At issue for her and other neighbors is the cement company’s overall credibility. They point to the violation regarding the A-frame dust-collection system, which the company claimed to have in place from April 1, 2001, through August 2003, but which state regulators say was not operational, as an example of the company not dealing honestly with the community or the state.

"Actions always speak louder than words, and Cemex’s actions really do tell the story," says Ken Dobbs. "This is the same company that burned almost 90 million gallons of hazardous solvents and contaminated oils for fuel from 1975 through 1991, without a permit… and now they want to burn tires for fuel and say they can safely do this."

Cemex has been working to burn tires in its kiln for the past couple of years but has faced significant opposition from neighbors and environmental groups, including the Sierra Club, which last year filed a lawsuit to stop tire-burning. The issue is now in court, with a decision expected this summer.

"In both cases of dust control and tire incineration, they are determined by process controls and good management practices," Cargill says. "We’ve been saying all along that if the management practices and process controls for fugitive dust are lacking, what makes any of us think the process controls and management practices for tire incineration will be any better? And why take a chance?"

But Lohr says Cemex is comitted to being a good neighbor.

"Our neighbors’ opinions are theirs," he says. "All I can say is we have an extremely complex operation out here. The regulations are very complex, and we strive to be in compliance with the letter and the spirit of everything."

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