Alcoa, von Gonten Family Reach Settlement in Legal Fight

Alcoa's Rockdale facility

Ending what many considered an effort to intimidate and silence its critics, Alcoa Inc., operator of a massive aluminum smelter and coal-fired power plant in Rockdale, about 60 miles northeast of Austin, inked a settlement in Milam County Court last Tuesday after filing a motion in September seeking more than $550,000 in legal fees from the von Gonten family, whose members sued the company in 2003 for area air pollution and for dumping coal combustion waste on their property without their consent. Alcoa sought fees and sanctions against the family's lawyer, Michelle McFaddin – a frequent Alcoa opponent representing community groups in environmental cases – for filing a frivolous lawsuit. "This has all the markings of a SLAPP suit [activist lingo meaning 'strategic lawsuits against public participation'], with Alcoa's goal being to discourage citizens from taking action when the company pollutes their property or damages their health," said Travis Brown, energy policy director of consumer-advocate group Public Citizen.

Alcoa backfilled a pipeline easement on the von Gonten family's property in 1992 with coal bottom ash from a TXU plant the company uses to power its smelter. The ash is known to contain varying amounts of toxic heavy metals. The family's suit was dropped last summer due to waning funds, as well as discrepancies over ownership of the property among family members who were plaintiffs in the suit, according to McFaddin.

The settlement requires the von Gontens and McFaddin to pay just under $6,000 over the course of one year, the actual court costs they would be responsible for after dropping the suit, but not Alcoa's attorneys' fees. As part of the settlement, Alcoa's motion was dismissed with prejudice, meaning that the family cannot refile the suit. The sanctions against McFaddin were dismissed as well.

Alcoa spokesman Kevin Lowery said it was Alcoa's intention "to be compensated for our costs against something we view as somewhat frivolous." He said the bottom ash is an inert material and that the Texas Commission on Environmental Quality found that the von Gonten family's claims weren't supported by sampling. It was more a lack of substance than property issues that led to the case's withdrawal, Lowery said.

The von Gontens, who have owned the property for four generations and who currently operate a poultry farm there, asked Alcoa to remove the ash before any suit was filed, fearing groundwater contamination, according to McFaddin. "This could've been resolved for a fraction of what [Alcoa] spent defending themselves," she said. Steve Young, a Houston attorney and family friend representing the von Gontens, said the family even offered to let Alcoa take soil from its property to fill the hole around the pipeline. When the area was tested in 2003 by an expert the von Gontens hired, trace amounts of the heavy metals barium and mercury were found, McFaddin said. TCEQ spokesman Terry Clawson said the agency itself has no record of testing the soil on the family's land. He referenced a September 2004 letter from the TCEQ to McFaddin that said testing of the ash done in 1992 by Alcoa did not detect barium, lead, or mercury at regulated levels, but that two of the three later tests by the von Gontens indicated a heavy metal presence above normal Texas thresholds. The TCEQ letter also noted, however, that the family's tests didn't account for any possible leaching, as ash below the soil wasn't tested. "The sampling that has been conducted to-date by Alcoa and the von Gontens' consultant does not support any claims that the bottom ash around the pipeline was the cause of any alleged contamination," the letter read. "Accordingly, based on current facts, TCEQ will not pursue an enforcement action at this time."

Observers suspected that Alcoa's six-figure claim was meant to intimidate, given McFaddin's successful lawsuit against the company on behalf of Lee and Bastrop counties citizens group Neighbors for Neighbors, which is opposed to Alcoa's efforts to get statewide rules for coal waste disposal relaxed. McFaddin is currently representing NFN and Public Citizen in new statewide proceedings with the Texas Railroad Commission, the federal Office of Surface Mining, and the EPA, in which the coal industry is allegedly planning another attempt to change the rules for its waste. Having focused her work on the disposal of coal ash in Texas surface mines, she said she will argue for "rules that will carefully regulate the recycling of these utility wastes to ensure that they aren't dumped on or into the ground [and] subject to leaching into groundwater supplies." Both McFaddin and Alcoa representatives testified before the National Academy of Sciences in January when they met in Austin to discuss the safety of using coal combustion waste to reclaim or refill surface mines. The Academy report is expected by the end of the year.