By W. DALE NELSON
Star-Tribune correspondent

LARAMIE -- Environmental groups and Mountain Cement Co. have reached an agreement that an attorney for the groups said “should significantly reduce the emissions” from a smokestack at the company’s plant south of here.

Reed Zars, attorney for Biodiversity Conservation Alliance and the Sierra Club, said a settlement read into the record in U.S. District Court in Cheyenne on Wednesday requires Mountain Cement to replace the pollution control equipment on the smokestack of one of its two kilns with a device known as a "bag house."

Zars said the new equipment will operate somewhat like a vacuum cleaner, so that “pollution coming off of the kiln will go through a bag somewhat larger than your vacuum cleaner’s, and the particulate matter, all those fine particles that are not good for your health, will be captured in that bag before being exhausted into our air.”

He said similar equipment was installed on the other smokestack nine years ago, and “we are just finishing up the job.”

Both smokestacks previously employed electrostatic precipitators to control pollution. Zars said the precipitators “are very sensitive to heat and to changes in the temperature of the gas and in the way the kiln is operated, so they allow much more pollution to escape.”

The attorney said Stewart Tomlinson, president of Mountain Cement, had “taken charge over there, and we are hoping under his leadership that the plant will even take further steps to reduce the pollution.”

Neither Tomlinson nor Phil Nicholas, an attorney who argued for Mountain Cement in the case, could be reached Thursday afternoon.

The settlement came in the third day of a trial in which the environmental groups claimed the plant had violated federal and state clean air regulations more than 15,000 times since 1999.

Mountain Cement contended that it operated in compliance with government standards.

Martha Martinez Del Rio, one of the Sierra Club citizen plaintiffs, said the settlement was “a mixed blessing” because “we were hoping that they might have had a small slap on the wrist” in the form of a financial penalty, “but that’s not going to happen.”

Nevertheless, Martinez Del Rio said, “the settlement is a great thing. We are really very pleased.”

In addition to the new equipment, she said, Mountain Cement “made some commitments to do some cleanup around the place.”

The environmentalists’ suit asked that the company abide by the standards of the Clean Air Act and pay a penalty to the government for the damage alleged to have been caused by the pollution.

Mountain Cement contended that all of the violations occurred during start-up, shutdown or malfunction of the kilns.

The company’s plant is just west of U.S. Highway 287 south of Laramie.

The environmentalists said discharges from the plant contained small, breathable particulate matter linked to respiratory ailments and asthma.

Star-Tribune correspondent W. Dale Nelson can be reached at wdnelson@bresnan.net.

By Micah Sturr
Boomerang Staff Writer

Biodiversity Conservation Alliance, the Sierra Club and Mountain Cement have finally cleared the air.

The lawsuit that was filed by the conservation groups against the cement manufacturer ended mid-trial with a settlement that both parties agreed to on Wednesday afternoon.

“It’s a big acknowledgement by Mountain Cement that they are members of the community and their employees are members of the community. We look forward to working with them to resolve any other problems that are out there,” Biodiversity member Suzanne Lewis said.

Mountain Cement President Stuart Tomlinson said, “It’s best for the plant, best for the process, best for the community and best for the employees.”

Biodiversity and the Sierra Club alleged in the lawsuit that Mountain Cement repeatedly violated its emissions permit.

In the settlement, Mountain Cement agreed to build a new baghouse to replace the less efficient electrostatic precipitator in kiln No. 2. The first of two kilns at Mountain Cement already has a baghouse and has fewer instances of excess emissions. Mountain Cement also agreed pay the legal fees of Biodiversity and the Sierra Club and to spend $75,000 on projects to reduce the amount of “fugitive dust” that is on the Mountain Cement lot and kicks up on windy days.

“If you’ve ever driven by that plant on a windy day, it looks like an Arabian sandstorm. It’s a real problem,” Bob Strayer, board member of Biodiversity, said.

The $75,000 is a good faith gesture and could be used by Biodiversity to pave the area — which makes it easier to clean and maintain — or plant trees that would beautify and act as a wind buffer, Mountain Cement’s attorney Phil Nicholas said.

Tomlinson added that the plant already has a program to deal with the excess dust that includes yearly road treatments, regular water truck and street sweeper runs to keep dust down and yearly grass and tree planting. Sierra Club member Connie Wilbert said she is hopeful that the $75,000 isn’t a one-time expenditure, but rather signal of an on-going commitment.

The $75,000 investment is minor compared to the potential $5 million that a new baghouse will cost. The new baghouse will be built next to the electrostatic precipitator and, in 2007, the conversion to the baghouse will take place over the course of three to four weeks, Nicholas said. Mountain Cement will continue to make cement throughout the process.

“It takes Mountain Cement to the next level of investment,” Nicholas said. “It sets Mountain Cement’s commitment in the state.”

The economic benefit to Laramie from the investment is significant, Nicholas said, and is demonstrative of Mountain Cement’s commitment to the community. Tomlinson said that the company was considering the conversion regardless of the lawsuit and said that the baghouse will make the plant more efficient, as well as cleaner.

“It’s the difference between running your 1955 car and a brand new car,” Nicholas said.

Mountain Cement maintains that it was always in compliance with its Department of Environmental Quality emissions permit, and the settlement was the best way to benefit themselves, the conservation groups and the community at large. (The settlement makes no findings of violations.)

“I don’t want rifts between us and Biodiversity or between the community and the employees. Differences are fine, but I’m not going to drive wedges,” Tomlinson said.

Strayer said he is happy that the settlement means cleaner air for everyone. The settlement is still under the jurisdiction of the courts, however. Biodiversity will continue to work with Mountain Cement to ensure cleaner air.

“We have no reason to think that they won’t (comply), but it’s still our responsibility to monitor it,” Strayer said.

The citizen enforcement provision of the Clean Air Act is the big winner in the settlement, Wilbert said.

“Citizens have the right to act when government agencies aren’t able to, or don’t,” Wilbert said. “Our goal with this lawsuit was to get Mountain Cement to reduce the emissions of toxic pollutants, and by doing that to clean up the air for the entire community of Laramie. We’re pleased with this settlement. We’re pleased that Mountain Cement is finally willing to commit to the use of this better technology.”

BY ERIC BAKER
Boomerang Staff Writer

CHEYENNE — The second day of trial in Biodiversity Conservation Alliance’s lawsuit against the Mountain Cement Company featured defense lawyers laying the groundwork for the argument that all of their company’s air quality violations fall into the category of a loophole that the state’s Department of Environmental Quality (DEQ) does not penalize.

The alliance, which is joined by The Sierra Club as a co-plaintiff, is suing the cement company in federal court for air quality violations in kiln No. 2. Reed Zars, lawyer for the alliance, had Dan Olson, Administrator of the Air Quality Division for the DEQ, testify that the cement company had roughly 1,200 six-minute opacity violations in the last recorded year.

Opacity is the amount of light that penetrates a smoke plume, and more light is better for the environment. Mountain Cement has violated the 20 percent opacity standard based on continuous opacity measurements, said Zars.

“Mountain Cement claims the 5 percent practice is a bar that prevents us from enforcing the emission limits,” said Zars. “They’ve had over 1,000 violations and they want them as freebies.”

Lawyers for the cement company did indeed make that claim, though they didn’t term the violations as such.

The crux of Mountain Cement’s argument is that all these violations occurred during kiln start-up, shutdown or a malfunction. Defense attorney Jim Harris coaxed Olson to admit that companies don’t have to report a malfunction to the state within 24 hours; rather they can choose their quarterly report instead.

“An exceedance of pollution limits are excused for start-up, shut-down or malfunctions, and companies must report whether these exceedances are based on malfunctions in their quarterly report,” said Olson, the only witness of the day.

Harris continued to question Olson about examples where malfunctions might lead to pollution exceedances.

“A lot of this material in big factories is mechanical and not electronic, so it takes a while to get going,” said Olson, allowing the defense to argue that start-up time is particularly lengthy.

Olson’s statement that with tens of thousands of moving parts, something could easily go wrong that could release an excess amount of dust also gave the defense more ammunition for later in the trial.

The 5 percent practice that Zars referred to is an air quality guideline that companies are expected to follow, but it is not a rule. If a company has 5 percent excess emissions in any one quarter, or 3 percent in any two consecutive quarters, the DEQ uses enforcement procedures.

“This practice was created as a bar against high-priority violators,” said Olson. “And businesses can assume they are not facing enforcement action if they follow the 5 percent practice.”

On face, the plaintiffs must show that the cement company is exceeding their permission limits, said Zars. But the defense is arguing they aren’t liable on several counts, especially since they haven’t broken the 5 percent barrier, added Harris.

The defense’s multiple lines of attack create a burden for the alliance, because the cement company has claimed virtually every one of the plaintiff’s cited violations are excused because of malfunctions, start-up or shut-down operations.

Opacity itself is not a pollutant, nor does the DEQ require companies monitor the total levels of opacity.

“The appearance of a plume with some opacity shouldn’t necessarily concern a citizen,” said Olson.

Air inspectors do measure opacity levels just by viewing a plume. These trained scientists have to look for a six-minute period, with the light at a certain angle, and take measurements every 15 seconds. This practice, called “method nine,” is the official compliance method, even though an opacity monitor, which is what the alliance used to mark their violations, will always record more particulate than method nine.

Method nine attempts to gauge how much particulate is being released in the air based on the inspector’s view of the opacity. DEQ uses a graph that shows as opacity increases, so does particulate matter. Twenty percent opacity roughly equals 27 pounds per hour, said Olson.

If the alliance wins, they want the cement company to abide by the standards in the Clean Air Act and to pay a penalty to the government for the damage it caused.

News Story Published On 10/25/2005

By Micah Sturr
Boomerang Staff Writer

Biodiversity Conservation Alliance’s lawsuit against the Mountain Cement Company began Monday with opening arguments by Biodiversity’s lawyers contending that the cement factory repeatedly violated its emissions permit. Mountain Cement’s attorneys countered that excesses of what is allowed by the permit were within the 5 percent limit that the Department of Environmental Quality usually allows.

In Federal District Court in Cheyenne, jurors heard arguments and the testimony of one of Biodiversity’s witnesses in the civil trial. The trial is scheduled to continue until Friday. The Sierra Club is a co-plaintiff along with Biodiversity.

There are two kilns at Mountain Cement, each with an attached smoke stack. Kiln No. 1 collects dust in a “bag house,” and kiln No. 2 collects dust with an electrostatic precipitator that charges particles as they pass through the system and then attracts them to a metal collecting plate. The bag house system is clean enough to not violate the permit. The permit is designed to maintain the standards set out in the federal Clean Air Act. Kiln No. 2 is less clean and is the cause of the repeated violations, according to Biodiversity.

Biodiversity’s lawyer, Reed Zars, said violations occur in kiln No. 2 when the opacity of the plume coming from the smoke stack exceeds 20 percent. Opacity is the amount of light that penetrates the plume. When it is crystal clear and all of the light goes through, there is zero percent opacity, and when no light penetrates, opacity is at 100 percent. Mountain Cement routinely exceeds 20 percent opacity, Zars said.

“It’s not a permit to do what you want,” Zars said.

Mountain Cement concedes that kiln No. 2 is less efficient than kiln No. 1, but lawyer Jim Harris said that excess of the 20 percent opacity standard only came during kiln start up, shut down or malfunction.

Periods of kiln start up, shut down or malfunction are exempt from the opacity regulations under the permit. The remaining instances occurred less than 5 percent of the time and therefore aren’t considered violations by the Department of Environmental Quality, Harris said.

“The fact that you have an exceedence doesn’t mean you have a violation,” Harris said.

Harris said that the fact that the state hasn’t joined the lawsuit demonstrates that there are no permit violations. The state issues the permit and is charged with enforcing it, he said, and since the Department of Environmental Quality operates under a “5 percent rule” there is no basis for the lawsuit. The Department of Environmental Quality generally takes no action against a company if the company is in permit compliance 95 percent of the time.

“What this is about is two private environmental groups who are second guessing the state,” Harris said.

Zars said that the permit on its face says that the either the state or private citizens can enforce it. Biodiversity is not trying to stop industry or all pollution; The group is just seeking compliance with the law, Zars said.

“Not just the government or the state, but citizens can enforce these guidelines,” Zars said. “There is no agenda, no political issues here. All these people are trying to do is enforce the letter of the law.”

The Laramie residents who will testify later in the trial are not personal injury claimants and won’t get any money out of a verdict, Zars explained to the jury. They will testify that they simply don’t like the brown cloud hanging over Laramie in the morning, don’t like the smell and are concerned about their health, he said.

“This case is about trying to avoid health effects, not prove them,” Zars said.

The claims of Biodiversity’s witnesses are driven by fear and not facts, Harris countered. Biodiversity is concerned with the appearance of the plume and not with the volume of emissions and, if violations are the problem that Biodiversity claims, air quality in Laramie would be bad, he said.

“Where’s the proof? Where’s the impact on the environment?” Harris said.

The sole witness, Dan Olson, Administrator of the Air Quality Division for Wyoming Department of Environmental Quality, was only questioned by Biodiversity. (Mountain Cement will have the opportunity to question him later in the week.) In response to Zars’ questions, Olson said that the permit, which is issued by his office, is enforceable by citizens and they don’t have to prove personal harm or pollution in the ambient air around Laramie to demonstrate a violation. He also said that the “5 percent rule” isn’t a part of the permit and isn’t a formal rule in the Department of Environmental Quality. It is an accepted operating policy, however.

By holding Mountain Cement to a higher standard than every other company in the state that is allowed to exceed its permit 5 percent of the time, the Laramie cement company would be at an unfair economic disadvantage, Harris said.

Zars said that Mountain Cement has been reaping economic rewards by violating its permit in the past, whereas the companies that have remained in compliance shouldn’t be hurt for lawful business practices.

“No one should benefit from violating the law,” Zars said.

Both sides will look to produce concrete evidence to support their cases in the coming days.