Something’s fouling the air in Texas, and it isn’t the chicken coops. It’s the billowing smokestacks on the horizon that’s got the natives restless.

Or at least that’s what John von Gonten, a former poultry farmer in Rockdale, Texas, says. When he came down with sinus and respiratory problems and severe headaches, he looked to his neighbor — Alcoa, Inc., the world’s leading producer of aluminum, located 8 miles from his property.

Von Gonten noticed his equipment corroding at an alarming rate, especially his chicken houses. Around the same time, he also began noticing the golden-yellow plumes coming from the four stacks above Alcoa’s power plant and smelting operations — a familiar sight for Rockdale residents.

Since von Gonten wore a mask while working with the chickens, he knew the coops probably weren’t to blame for his illness. But what he didn’t know was that there was more than bad air coming his way.

In 1992, a pipe owned by Alcoa burst on his property, and the company filled the resulting hole with bottom ash. More than 10 years later, when soil testing revealed the presence of eight metals in that area, von Gonten sued Alcoa.

After a two-year legal battle, von Gonten and his lawyers ran out of money and dropped the case.

That’s when Alcoa decided to sue back, seeking to recover more than $550,000 in attorneys’ fees for what they consider to be a “frivolous lawsuit.”

The broken pipe was part of a water-carrying network that lay underneath 13 to 14 miles of land the company had leased.

The company, covering 55,000 acres, chose the lignite-rich Rockdale area to fuel power plants for its energy-intensive aluminum smelting process. The complex sits alongside Alcoa Lake, a man-made body of water that reaches up to 102 F from plant water discharges, according to Alcoa representatives.

In addition to the Alcoa operations, Texas Utilities runs an electric steam generating plant at the smelter. The plant provides electricity through the burning of lignite to both Alcoa and Texas’ electrical grid.

A byproduct of lignite-fired power plants is bottom ash — a glassy, sand-like material.

Von Gonten believed Alcoa had filled the hole in his land with at least “five or six truckloads” of soil. But as his attorney, Michelle McFaddin, said, “Rather than filling that hole with dirt, they filled it with bottom ash.”

Suspicious of what the company had used to fill the depression, von Gonten had sought legal advice from McFaddin, an environmental attorney located in Austin, Texas. His family also hired Rosengarten, Smith & Associates, Inc., a group of environmental consultants, to test the soil.

The soil and suspected bottom ash samples were analyzed by the environmental consultants and found to contain eight metals: arsenic, barium, cadmium, chromium, lead, mercury, selenium and silver.

In correspondence with the Texas Commission on Environmental Quality (TCEQ), Alcoa said it placed bottom ash generated at Texas Utilities’ power plant on the von Gonten property as “fill” around the area of the pipeline rupture.

The disposal area was ringed by four groundwater wells that were being used for the von Gonten’s poultry production operations and other water supply uses.
Rosengarten, Smith & Associates suggested that barium and mercury may have leached into surrounding groundwater supplies.

In 2003, von Gonten sued Alcoa and Texas Utilities in Milam County district court. He asked that they remove the material from his property and investigate whether contamination resulted — at the company’s expense.

He cited the loss of business, soil contamination, health problems and damage to property.

Von Gonten and McFaddin soon faced fierce opposition.

Alcoa informed von Gonten that the bottom ash was a “coproduct” and therefore not subject to federal or state waste regulation.

But the Texas Commission on Environmental Quality thought otherwise and determined that Alcoa’s re-use of the bottom ash as “fill” was not a legitimate co-product usage. That decision meant the company needed a waste disposal permit from the Commission.

Alcoa then sent some limited analyses collected over a 20-year period to the Commission to substantiate its claims that the bottom ash was “inert.” It is still unclear to officials where these samples were taken from.

The Texas Commission on Environmental Quality refused to initiate enforcement or removal action because the soil samples provided by the von Gontens did not portray clear evidence that contamination exceeding risk-based, human health standards had occurred.

Von Gonten and McFaddin believe that since the material had been there since 1992, it is likely any hazardous metals had already leached out by 2003, when their environmental consultants discovered the bottom ash.

Alcoa, Texas Utilities and the TCEQ have refused to perform additional sampling of the bottom ash, the surrounding soils or underlying groundwater for toxic, heavy metals or other hazardous chemicals.

The bottom ash remains on the von Gonten property today.

After a legal battle that lasted more than two years, McFaddin and von Gonten ran out of the resources necessary to press their case.

“I kept the suit moving forward,” McFaddin said. “But they basically pummeled us into the ground.”

In August 2005, McFaddin moved to dismiss the case without prejudice. The Milam County district court did so on Aug. 26.

In a surprising turn of events, Alcoa recently asserted a claim against both McFaddin and the von Gontens seeking to recover their attorneys’ fees.

The motion for sanctions and recovery of attorneys’ fees was filed with the Court on Sept. 23, just six days before McFaddin was scheduled to speak to a roomful of journalists about her experiences.

Texas Utilities requested to join Alcoa’s motion for sanctions on Oct. 4, also seeking “tens of thousands” of dollars for its attorneys’ fees.

When asked about the case, Alcoa spokesperson Jim Hodson had little to say.

“There is no von Gonten case,” Hodson said. “They withdrew.”

McFaddin and the von Gontens have since hired individual attorneys to deal with the case.

With health problems, the loss of his business and an impending legal battle, von Gonten is worried about his assets.

“I just want to protect my family and want my family’s property to be protected,” von Gonten said. “We’ve done well with the 650-some acres my ancestors settled.”
The von Gonten family has lived on their Texas ranch for 132 years.

Since von Gonten moved to Austin, his brother has been tending the farm.
“It’s affected me financially,” he said. “It’s caused an emotional drain on me, but made me stronger spiritually."