November 2019 Volume 2, Issue 11

The Environmental Justice Team at Lone Star Legal Aid welcomes you to Environmental Justice News. We’re keeping communities updated on our team’s ongoing environmental law efforts throughout our 72-county service area in Texas.

In our newsletter, you’ll find an overview of the types of legal cases we’re currently handling for eligible individuals and organizations who are living in fence-line communities and other areas where environmental justice is a concern. If you have an environmental legal matter that concerns you, please call 713-652-0077 ext. 8108 for more information on how we might be able to help your neighborhood!

Our environmental justice team is part of a broader Equitable Development Initiative at LSLA, with additional teams focusing on fair housing and community advocacy. The Equitable Development Initiative’s goal is to provide legal assistance to foster community revitalization in low-income neighborhoods by fighting systemic discrimination and degradation, and by helping residents create safe, decent and equitable living spaces.

Please feel free to share Lone Star Legal Aid’s environmental watchdog newsletter with your friends, family and neighbors! To subscribe to our newsletter and/or receive updates about your neighborhood, click here .

Amy Dinn

Managing Attorney, Environmental Justice Team

Caring for Pasadena Communities (CPC) Expresses Concerns over ITC Deer Park's

Title V Permit

On October 15, 2019, the community group and Lone Star Legal Aid client, Caring for Pasadena Communities (CPC), submitted public comments along with a request for a notice and comment hearing to the Texas Commission on Environmental Quality (TCEQ) regarding Intercontinental Terminals Company (ITC)’s Deer Park storage tank facility, which is currently seeking to renew its Title V Federal Operating permit. 

The company’s request to renew its permit comes on the heels of ITC’s March 2019 disaster that occurred when multiple petrochemical storage tanks at the Deer Park facility caught fire and burned for days, threatening residents’ health and shutting down the Houston Ship Channel. Objecting to the permit renewal, CPC is concerned that ITC's Draft Title V Permit is woefully inadequate, lacking in details needed to ensure compliance with regulations and enforcement of the troubled facility. Without corrections to the permit, CPC feels that the Deer Park facility will continue to pose a threat to the health and safety of thousands of residents living along the Houston Ship Channel.

Meant to consolidate all of the monitoring, recordkeeping, and compliance requirements of a facility’s operations into a single permit, Title V permits are supposed to provide an avenue for state regulators and the public to better understand the scope and legal obligations that a facility is operating under, says Lone Star Legal Aid Environmental Attorney, Rodrigo Cantú. Title V permits should also describe the terms that the TCEQ and the public can use to bring enforcement actions against a facility. “In this case, ITC’s Draft Title V Permit fails to include even basic compliance information such as a compliance schedule to address the facility’s recent violations related to the March 2019 disaster,” shared Cantú.

CPC’s comments to the agency noted numerous deficiencies with the facility’s permit, including a lack of details on multiple emission sources at the facility, and a confusing lack of information regarding how and why ITC’s use of standard permits may apply to those emissions. Further, the Draft Permit is unclear about which monitoring, recordkeeping, and reporting requirements apply to the facility’s standard permits, said CPC.

CPC plans to submit more detailed comments once the permit’s deficiencies have been fully parsed out by Lone Star Legal Aid’s EJ team. “The initial comments do not represent the full extent of the issues signaled, nor do they represent all the possible issues that might be on the table,” explained LSLA’s Cantú, who represents CPC. Since CPC’s initial request to TCEQ will extend the public comment period, the EJ team plans to take a closer look at the terms of ITC’s Federal permit and Statement of Basis, which is meant to clearly set forth legal and factual basis for permit conditions.

On March 17, 2019, a petrochemical fire swept through ITC’s Deer Park storage tank facility when a leak in a pipe containing naptha caught fire, causing an explosion of one of its storage tanks which quickly spread. Multiple tanks caught fire and burned for 64 hours as a thick black plume of smoke blanketed the entire region for miles, leading to shelters-in-place in communities along the ship channel including Pasadena, Galena Park, LaPorte, Sheldon and Channelview. Residents experienced breathing difficulties and asthma attacks during the disaster. Black soot from the fire rained down on neighborhoods, landing on homes, yards and vehicles. In the following days and weeks, emissions of cancer-causing benzene and other Volatile Organic Compounds (VOCs) spiked as multiple flare-ups re-ignited in the smoldering tanks and drainage ditch nearby caught on fire. Thousands of gallons of firefighting foam containing highly toxic and persistent chemicals known as per- and polyfluoroalkyl substances (PFAS) escaped into the ship channel when a retaining wall failed, causing an ongoing secondary threat to public health and the environment.

The U.S. Chemical Safety and Hazard Investigation Board (CSB) recently reported that the Deer Park facility had no remote shut-off valve to prevent the fire, and was not equipped with a fixed gas detection system that could have alerted workers to the leak of flammable chemicals that led to the blaze.

Due to ongoing concerns about the facility, Harris County Attorney‘s office also submitted comments and requested a notice and comment hearing from TCEQ on the Title V permit. In its comments, the County noted multiple violations of the Texas Clean Air Act issued to the facility by Harris County Pollution Control Services (PCS) in the wake of the March 2019 disaster. Despite multiple compliance citations as well as additional pending TCEQ enforcement actions, the TCEQ gave the facility a “satisfactory compliance” score, a favorable rating that is concerning to Harris County. Lone Star Legal Aid’s EJ team plans to coordinate efforts with Harris County leading up to the anticipated public meeting. 

Advocating for the health of communities along the Houston Ship Channel, CPC plans to reach out to residents in the coming weeks in order to raise awareness about the permit issues and help community members to become more engaged in the public participation process. “Community members need to use their voices as a tool to stop this permit from being renewed and to prevent the facility from causing further harm to people and the environment,” shared Patricia Gonzales of CPC. “ITC has already shown it cannot be trusted – they have proven time and time again that they are not good stewards to this community. That’s why we’re putting our foot down and saying enough is enough.”  

Community members and advocates are awaiting TCEQ’s response to their comments, expected sometime within the next few months. The public comment period will remain open until the public meeting takes place, at a future date to be determined by the agency. The Executive Director approved the public hearing requested by LSLA and others, but as of November 15, the time and place of that public meeting has not yet been set.

LSLA plans to remain engaged on the permit process moving forward. “The Title V Permit is supposed to clearly state applicable requirements. ITC’s Draft Permit fails to do that,” shared Cantú. “This will be an opportunity for the public that has been impacted by the disaster to demand more transparency and responsibility on the part of ITC.”

To submit a public comment on ITC Deer Park’s Title V permit, click here. Choose Enter permit # 1061 in the box labeled, “Permit Number.” Then enter your name, contact information, and comments in the boxes provided, and click on “Submit to TCEQ.”

Houston Students Speak Out on

Valero Manchester Title V Permit

Last month, Lone Star Legal Aid’s EJ team joined LSLA community partners, Texas Environmental Justice Advocacy Services (t.e.j.a.s.) and Earthjustice, to share educational information with students involved in Film Production classes at Furr High School, located five miles north of the Harrisburg/Manchester neighborhood on the east side of Houston. The groups talked about environmental justice issues in communities where area youth have firsthand knowledge of toxic pollutants, becoming unwitting experts at a young age. The students shared their recent experiences with pollution, including the March 2019 ITC Deer Park disaster. Recalling the incident as very dramatic for them, the students said they couldn’t go outside at their school during the disaster because of the dangerous air quality conditions. One of the students also talked about the effects of air pollution releases while living in the Manchester neighborhood during Hurricane Harvey. She remembered the awful smell and feeling lightheaded and dizzy after Valero’s huge release of benzene, which occurred when a flooded storage tank roof partially collapsed at the Manchester refinery during the storm, sickening community members.

LSLA and community partners also shared information with the students about the public participation process for Air Quality Permitting through the Texas Commission on Environmental Quality (TCEQ). The students learned about how to submit a public comment and how to request a public notice and comment hearing through the state agency.

On October 8, several of the Film Production students put their knowledge into action by attending a Public Meeting with TCEQ and Valero’s Manchester Refinery, where dozens of community members, some of whom had lost family members to cancer, voiced their deep concerns about the possible renewal of Valero’s Title V Federal Operating permit. In their new role as journalists, the students interviewed community members and other meeting attendees with plans to produce short videos and podcasts of the public meeting for a class project. 

During the meeting, many community members expressed outrage over the huge differences in fenceline monitoring at Valero’s Manchester refinery compared to monitoring at Valero’s Wilmington, California Refinery, which uses real-time, continuous monitoring of multiple chemicals including Hydrogen Cyanide (HCN), a dangerous chemical found in Valero’s emissions. Emissions data for the Wilmington Refinery is available for community members to review online, with a public alert system that lets community members know when emissions levels are exceeded.

By contrast, Valero’s Manchester site only measures benzene levels. Data are not real-time. Emissions samples are collected in canisters which are analyzed weeks later, useless to community members during a spike in emissions. The Manchester refinery’s data are not posted online – information is only available to community members by request to the TCEQ. And there is no alert system to let community members know when emissions reach dangerous levels in their neighborhood.

At the public meeting, Valero representatives asserted that the rules for monitoring are different in Texas than in California. While this may be true, community members pressed the company to do better than the bare minimum standards for monitoring it currently employs in Texas.

Caring for Pasadena Communities member, Patricia Gonzales, was thrilled to see the students’ participation. “I was really excited to see the students out there getting engaged and understanding how this will affect them in the long term – to know what’s in their backyard, and to learn how they can use their voices to effect change. TCEQ heard that they’re not going to give up,” shared Gonzales.

Community members and advocates are awaiting TCEQ’s response to their comments, expected sometime in the next several months. After TCEQ responds, the permit and comments will be forwarded to the Environmental Protection Agency (EPA) for final approval. At that point, the public has the option to petition EPA to amend or reject Valero’s permit.

“It became clear while talking to permitting officials at TCEQ that they’re not used to this level of public engagement and scrutiny,” said LSLA’s Colin Cox, Attorney for Caring for Pasadena Communities. “One of the reasons these permits are full of holes is because nobody has looked closely enough at them. Now, provided the system works, TCEQ will fix the many deficiencies we identified before submitting the permit to EPA. If not, we will continue to fight for a better permit at EPA and in Federal Court."

Above: Film production students from Furr High School on location at TCEQ's public hearing regarding Valero Manchester Refinery's Title V Federal Operating Permit, October 8, 2019 / Photo: Heejin Hwang,

Lone Star Legal Aid

Above: LSLA EJ team members Heejin Hwang (L) and Colin Cox (R) join Ana Parras and Juan Parras of Texas Environmental Justice Advocacy Services (t.e.j.a.s.) / Photo: Courtesy Heejin Hwang

Pasadena Resident

Fights off Power Plant

while Fighting for her Right to Participate in TCEQ's Air Quality Permitting Process

In 2017, the multi-national power company AES Generation Development, LLC applied for an amended Air Quality Permit from Texas Commission on Environmental Quality (TCEQ) to build a natural gas-fired power plant along the Houston Ship Channel, located just 800 feet from a residential neighborhood in Pasadena. Community member Patricia Gonzales was very concerned about the possibility of a new power plant being built along the ship channel in the same location where AES previously ran its highly polluted petroleum coke-fired plant before closing the old plant down in 2013, eventually tearing it down in 2015. 

Exercising her right to public participation in TCEQ's permitting process while fighting for her community’s right to clean air, Gonzales submitted public comments to TCEQ along with a request for a public meeting and a request for a Contested Case Hearing on the proposed plant.

Treating its permit application as a modification of the old plant, AES claimed the project would actually contribute negative net emissions, after subtracting the old plant’s previous high emission numbers as credits against the new facility’s proposed emissions. In her comments submitted to TCEQ, Gonzales pointed out that the old facility had been shut down for too long to qualify as an existing facility. Further, Gonzales said, TCEQ had already claimed the emissions reductions from shutting down the old plant as part of the agency’s filings with the EPA to show ozone reduction measures in the Houston-Galveston-Brazoria Nonattainment Area. The agency was double-counting AES’s air emission reductions, said Gonzales – and that's illegal.

After the public comment deadline had closed on the permit, TCEQ allowed AES to change its application status to a “minor source” of pollution, rather than a “major source” as the company had initially proposed. By reducing the facility's proposed hours of operation, AES lowered its proposed total emissions to just barely below the major source threshold of 100 tons per year (tpy), now stated as 99.4 tpy.

Changing the facility's status to a “minor source” of pollution, TCEQ ruled it would not grant Ms. Gonzales’ contested case hearing to challenge the permit, since the agency's rules for granting such hearings are more restrictive for minor sources of pollution than for major sources of pollution. Further, because the plant was now classified as a minor source by the agency, the deadline for members of the public to request a contested case hearing was now considered by the agency to be retroactively expired as of March 2016, said TCEQ's Executive Director (ED) in a November 2017 letter to Gonzales.

LSLA’s Colin Cox then filed a Motion to Overturn (MTO) the agency’s decision on behalf of Ms. Gonzales. At a TCEQ Commissioner’s Agenda Meeting on May 23, 2018, Commissioners acknowledged a problem in the agency's process and struggled to justify the TCEQ ED’s decision to retroactively deny Ms. Gonzales her right to public participation. Ultimately, however, the Commissioners sided with the ED in a decision against Ms. Gonzales. 

 

Not backing down, Ms. Gonzales decided to pursue her case further. She filed suit against the TCEQ in Travis County District Court to have the specious air quality permit revoked. In addition, she asked the Court to restore her lawful right to a hearing based on her previous comments to the commission, and to prevent the TCEQ from imposing already-expired deadlines in the future.

AES joined in the suit and, along with the TCEQ, moved to dismiss the case for lack of jurisdiction. TCEQ argued that Ms. Gonzales' lawsuit should be dismissed because she had failed to exhaust administrative remedies by failing to meet the deadline to request a hearing – a deadline that had already been expired for months when TCEQ imposed it – despite the fact that the injustice of this retroactive deadline was exactly what Ms. Gonzales' lawsuit was about. Rejecting this argument and others made by TCEQ and AES, the District Court allowed Ms. Gonzales' suit to proceed.

TCEQ and AES then appealed the District Court’s decision to the Third Court of Appeals. While the appeal was pending, AES requested that TCEQ cancel its permit for the new power plant, since construction on the plant had not begun within TCEQ’s required timeframe of 18 months from receiving the permit. Instead of asking the agency for an extension of the construction deadline, AES simply abandoned its permit and withdrew from the case. 

Relieved that AES can no longer build a power plant in the Pasadena location unless it applies for a new permit, Gonzales looks forward to cleaner air for her community. “I’m just glad that they decided not to fight us on it – and that we were able to successfully prevent this facility from being built. I’m happy with that outcome,” shared Gonzales.

With the underlying permit for the plant cancelled, TCEQ asked the Court of Appeals to dismiss the entire case as moot. While Ms. Gonzales agreed that her claims related specifically to the permit were moot, she argued that she still had a viable claim in seeking a ruling from the Court that TCEQ did not follow its own rules in approving AES's permit. On October 30, the Court of Appeals dismissed Ms. Gonzales' case because of the withdrawn permit.

While AES has been prevented from building its new power plant in Pasadena, LSLA’s Colin Cox is wary of the implications of the Court’s decision. “This gap in TCEQ’s rules has not been resolved, so there remains a risk that the agency will try another bait-and-switch in the future," Cox commented. "TCEQ has a pattern of making it difficult for communities to be involved in the public participation process. It’s not ok for TCEQ to deny public participation in the air permitting process by imposing already-expired deadlines. Patricia Gonzales and her community deserve a chance to have their voices heard."

Above: Site of former AES power plant in Pasadena / Photo - Colin Cox, Lone Star Legal Aid

Above: Map of former AES site in Pasadena / Google maps

Top: Patricia Gonzales / Photo - Courtesy Patricia Gonzales

Pleasantville Community Engages in

Data to Action

On October 22, Dr. Grace Lewis of Environmental Defense Fund (EDF) presented at the regular monthly meeting of Super Neighborhood 57 in Pleasantville to discuss the Data to Action Program, a grant-funded initiative supporting three communities that Lone Star Legal Aid’s Environmental Justice Team has been working alongside: Pleasantville, Galena Park, and Fifth Ward. The Pleasantville community’s Data to Action focus will also include nearby communities of Clinton Park (SN59) and Groveland Terrace (SN57), where neighborhood children attend Pleasantville schools.

At the beginning of the meeting, Bridgette Murray, Super Neighborhood President and founder of Achieving Community Tasks Successfully (ACTS), announced the conclusion of the community’s work since February 2019 to select and place seven air monitors in the Pleasantville area, choosing strategic locations where the monitors would be installed the following week. The first community-led air monitoring program of its kind in Texas, the monitors will measure nitrogen oxide (NOx), particulate matter (PM2.5) and Total VOCs (volatile organic compounds). Measuring pollution levels in real time, the monitors will display data online, arming community members with a more accurate picture of air quality in their neighborhood. “We’re very excited about getting the community-led monitoring program off the ground,” shared Murray.

At the meeting, EDF’s Grace Lewis then shared a presentation with the community on ToxPi (Toxicological Prioritization Index), an analytical framework that integrates multiple sources of evidence, transforming data into compelling visual profiles. Using the ToxPi software, EDF assessed the vulnerability of 1,090 census tracts in the eight-county Houston-Galveston-Brazoria (HGB) region. Five categories (domains) of risk exposure were included in the assessment:

 

Integrating multiple sources of data for each domain, EDF’s customized ToxPi tool generated an overall vulnerability “score” for each census tract, taking into consideration all five domains. The higher a census tract or community’s ranking (closer to 1), the higher a community’s overall vulnerability is.

 

EDF’s presentation revealed that based on the ToxPi analysis, Pleasantville ranked 21 out of 1,090 census tracks, with the key contributing risk exposures being Baseline Health (Ranked 21) and Environmental Sources (Ranked 9). The neighboring Groveland Terrance ranked 19 overall, with a score of 86 for Flooding risk, given its proximity to a bayou, and 13 for Environmental Sources. Clinton Park/Fidelity (SN59) had an overall score of 43 compared to the rest of the HGB region, but its primary drivers of vulnerability were Baseline Health (Ranked 21), Environmental Sources (59), and Environmental Exposure Risk (29).

 

Providing an unbiased comparison of community vulnerability, EDF’s ToxPi project, also known as HGB EnviroScreen, is the first data visualization project of its scope that combines health and environmental data to address regional concerns in the Houston-Galveston-Brazoria area. “This is good science in action,” shared Lewis, “It will help to empower and inform communities in our region.” Partnering with Texas A&M University, EDF plans to make HGB EnviroScreen available soon to the public online.

 

In the coming months, Lone Star Legal Aid and the Environmental Law Clinic at the University of Texas will be supporting the Data to Action Program’s efforts by providing additional community education presentations on specific environmental concerns. “Students in the Environmental Clinic are gathering emissions and compliance data for Houston area neighborhoods that are overexposed to pollution,” shared Kelly Haragan, Director of UT’s Environmental Clinic. “Community groups can use this information to identify the biggest polluters and environmental violators in their neighborhoods. We’re also sharing information about how communities can be more involved in environmental permitting and enforcement actions in order to reduce pollution and better assure compliance by polluters.” The presentations may further help to explain some of the rankings and primary drivers of vulnerability illustrated through the ToxPi system.

 

A community-driven initiative, the Data to Action Program aims to address long-standing inequities. Partnering with Texas Southern University’s Denae King, PhD, each of the Data to Action communities will be working to formulate a long-term plan to address environmental injustices and disparities in their neighborhoods, thereby reducing community vulnerability.

 

Amy Dinn, Managing Attorney of LSLA’s EJ Team, wants to continue supporting these important EJ communities as they move forward in the planning and implementation process of Data to Action, helping communities to address specific environmental impacts affecting their vulnerability. “Lone Star Legal Aid plans to be a resource for communities seeking to address health disparities in their neighborhoods, and we are here to support their efforts,” shared Dinn.

 

“Building relationships with other grassroots and environmentally-focused organizations is very important to vulnerable communities who are threatened by environmental pollution and other risk factors,” said Murray. “Our working relationships with Texas Southern University, EDF, and organizations like Lone Star Legal Aid and Earthjustice are so important. And for us, that’s just the beginning of building strength within our community. Many times, communities at risk is try to ‘go it alone,’” Murray shared. “Communities need to build upon their partnerships, which are an opportunity for providing information and education. Education is key - it’s so important, both for community members and those who are in positions to make decisions. All of the data and knowledge gained through the Data to Action partnerships can be used as a tool for community members to clarify their position and advocate for environmental justice in our communities.”

 

Upcoming Data to Action community presentations will be held:

 

 

To learn more about ToxPi and HGB EnviroScreen, contact Grace Tee Lewis, PhD at: GLewis@edf.org 

Lone Star Legal Aid's Environmental Justice Team partners with a wide variety of community organizations and non-profit groups including:

Achieving Community Tasks Successfully , Air Alliance Houston , Barrett Economic & Community Development Organization (BECDO), Caring for Pasadena Communities , Coalition of Community Organizations (COCO) , Coalition for Environment, Equity, and Resilience (CEER) , Concerned Citizens for Accountability, Earthjustice , Environmental Community Advocates of Galena Park, Environment Texas , Environmental Defense Fund , Environmental Integrity Project, Environmental Law Clinic of the University of Texas School of Law , Harvard T.H. Chan School of Public Health , Independence Heights Redevelopment Council , Independence Heights Reinvestment Fund, National Environmental Law Center , Friends of Eastwood Park , National Resources Defense Council , Neighborhood Witness , Northeast Houston Redevelopment Council , Pleasantville Civic League, Old Tamina Water Supply Corporation, OST Community Partnership, Port Arthur Community Action Network, Public Citizen , Settegast Heights Redevelopment Corporation, Sierra Club Lone Star Chapter , South Houston Concerned Citizens Coalition, Super Neighborhoo d 48, Super Neighborhood 57 , Texas Campaign for the Environment, Texas Environmental Justice Advocacy Services , Texas Health and Environment Alliance , Texas Low Income Housing Information Service ,   Texas Southern University Thurgood Marshall School of Law , UT Health Science Center at Houston School of Public Health