Von Gonten noticed that the metal in his coops was rapidly corroding, and he connected the problem to the golden-yellow plumes from the stacks at the Alcoa aluminum smelting operations and jointly operated Alcoa/Texas Utilities power plant. Lignite coal to run the power plant is mined on the land of surrounding ranchers, many of whom sold mineral rights to their properties for small amounts of money in the 1970s.
Around 1992, a water pipe owned by Alcoa burst on von Gonten’s property, creating a large depression that the company filled with five or six truckloads of “soil.” Suspicious of what the company had used for fill, von Gonten sought legal advice from Austin-based attorney Michelle McFaddin.
Meanwhile, tests of the fill soil labeled it as likely bottom ash, a byproduct of lignite-fired power plants that in this case contained arsenic, barium, cadmium, chromium, lead, mercury, selenium and silver. Alcoa admitted in correspondence with the Texas Commission on Environmental Quality (TCEQ) that it used bottom ash as fill.
Making matters worse, the ash disposal area was ringed by wells that were being used for the von Gonten family’s poultry operations. Environmental consultants hired by the family suggested that barium and mercury may have leached into groundwater. “This is just one case among many,” says Travis Brown, an activist with both Public Citizen and the local group Neighbors for Neighbors. “Dozens have been forced to sell their homes to the company because of the mining operations.”
In 2003, von Gonten brought suit against Alcoa and Texas Utilities, requesting an injunction ordering removal of the material. In its defense, Alcoa said that the bottom ash was a “co-product” and therefore not subject to federal or state waste regulation. After initially siding with the family, TCEQ refused to initiate any sort of enforcement or removal action, claiming that the soil samples did not portray clear evidence of risk to human health.
The bottom ash remains on the von Gonten property today. After a lengthy legal battle, McFaddin and von Gonten ran out of money. “They basically pummeled us into the ground,” says McFaddin. The case was dismissed “without prejudice” last August. But it wasn’t over.
In September, Alcoa filed suit against McFaddin and the von Gontens, seeking to recover more than $550,000 in attorneys” fees for what the company considers a “frivolous lawsuit.” When asked about the case, Alcoa spokesperson Jim Hodson says simply, “There is no von Gonten case. They withdrew.”
With respiratory problems, business losses and an impending legal battle, von Gonten is clearly worried. “I just want to protect my family and our property,” he says. “This case has caused an emotional drain on me, but made me spiritually stronger.”