August 2019 Volume 2, Issue 8

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 forward this newsletter about Lone Star Legal Aid’s new environmental watchdogs 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

EJ Team Files Amicus Brief on Ozone NAAQS to U.S. Court of Appeals for the D.C. Circuit

On August 5, 2019, the D.C. Circuit of the U.S. Court of Appeals accepted an amicus brief that the EJ Team submitted on behalf of community group and LSLA client, Caring for Pasadena Communities (CPC). The 25-page brief was submitted in support of a group of plaintiffs that includes Earthjustice, Sierra Club and others who are challenging a rule recently adopted by the Environmental Protection Agency (EPA). The rule establishes the requirements and limitations for the state of Texas to amend its State Implementation Plan (SIP) in order to comply with the 2015 National Ambient Air Quality Standards (NAAQS) for 8-hour Ozone. The amicus brief, which challenged a particularly troublesome part of the rule referred to as the Inter-Precursor Trading (IPT) program, provided the court with a ground-level perspective of how the IPT program would negatively impact the health of the communities immediately surrounding the Houston Ship Channel.

The EPA created the IPT program to provide industrial facilities in nonattainment areas added flexibility in meeting their ozone-precursor emission limitations established in each facility’s respective air quality permits. Ozone is not directly emitted by facilities, but instead is created by precursor pollutants, such as volatile organic compounds (VOCs) and nitrogen oxides (NO _x), that react with sunlight and heat to form ground-level ozone, the main ingredient in smog.

The IPT program allows new or modified facilities in nonattainment areas, such as the six-county region known as the Houston-Galveston-Brazoria (HGB) area, to purchase emission reduction credits of either precursor pollutant to offset emission exceedances of the facility’s permit limits for either precursor pollutant. In other words, if a new or modified facility in the HGB area emits more VOCs than their permit allows, then that facility can purchase emission reduction credits for either VOCs or NO _x (or vice versa), thereby avoiding any repercussions for exceeding their emission limitations.

While the IPT program requires that the amount of emission reductions credits purchased by the facility exceed the actual amount of precursor pollutants emitted over the facility’s permitted limit, the IPT does not require a like-for-like trading of pollutants, which is particularly troubling because the formation of ozone from VOCs or NO _x is dependent on so many factors, including sunlight, time of day, weather conditions, traffic patterns, and wind speed and direction. Thus, CPC is particularly concerned that the IPT program will result in higher concentrations of one precursor pollutant, each of which results in its own negative human health impacts, without any guarantee that the program will result in an overall reduction of ozone.

Additionally, CPC’s brief pointed out deep flaws in the IPT policy that will lead to serious adverse impacts to the health and welfare of highly vulnerable minority and low-wealth environmental justice communities like Pasadena and its neighboring communities that surround the Houston Ship Channel. While the entire HGB area’s ambient air quality exceeds the EPA-determined protective levels for ozone, the communities located directly adjacent to the Houston Ship Channel are in a particular dire environment because its residents live, work, and recreate in their home communities which receive greater cumulative effects of air pollution due to being located around the world’s largest petrochemical industrial complex. These communities face disproportionate burdens from an alarming level of harmful pollutants emitted by industries along the ship channel, where “hotspots” of carcinogenic VOC emissions already exist.

“All of this is so the EPA can provide industrial facilities greater flexibility to operate in an area that has never reached ozone levels anywhere near the levels EPA deems as being minimally protective of human health,” said LSLA Environmental Attorney Barham Richard. “While some may argue that the IPT program is limited to a small universe of only new or modified permits in nonattainment areas," shared Richard, "in the Ship Channel alone, there are more than 300 pending permits that, if granted, will be eligible to participate in the IPT program.”

Communities located along the Houston Ship Channel "face challenges unlike most locations in the U.S.," explained UT School of Law professor David Frederick, who served as co-counsel on the amicus brief with LSLA’s EJ Team. “Here, it’s a real problem that VOCs are being traded off for NOx,” said Frederick.

That point was strongly supported in CPC’s brief, which showed that minority and low-income communities along the Houston Ship Channel including Pasadena, Harrisburg, Manchester, and Galena Park already suffer from some of the highest rates of respiratory disease, cancer and mortality in the country. Harrisburg and Manchester residents have a 24% to 30% higher risk of cancer than more affluent neighborhoods in Houston, and Galena Park residents face a 30% to 35% higher cancer risk. Children living near the Houston Ship Channel have an increased incidence rate of acute lymphocytic leukemia, a disease associated with exposure to 1, 3 butadiene, which is emitted by nearby industries.

CPC’s brief further established that communities along the ship channel are likely to face even greater negative health impacts with the implementation of the IPT policy. Finally, CPC’s brief argued that the EPA failed to properly review the rule to ensure that it does not run afoul of mandated civil rights laws and policies requiring EPA programs to prevent disproportionate environmental and health impacts to communities of low-income and minority populations.

The primary parties to the suit are expected to submit their response and reply briefs to the D.C. Circuit Court between November 2019 and January 2020. Oral arguments will then be held before the court sometime after January 2020. LSLA advocates and community members will be keeping a close eye on the progress of the suit.

LSLA EJ Attorney Barham Richard contributed to this story.

Above: Health Effects of Ground-level ozone / Source: Campo Ozone Heroes

Top: U.S. Court of Appeals for the D.C. Circuit / Photo: https://www.cadc.uscourts.gov/internet/home.nsf

Port Arthur Community Action Network's

Notice of Intent to Sue

Leads to State's Suit against

Valero's Port Arthur Refinery

Community group and LSLA client Port Arthur Community Action Network (PA-CAN) previously announced that it planned to sue Valero Energy Corporation and its subsidiary, Premcor Refining Group, Inc. (collectively, “Valero”), in federal court for hundreds of violations of the Clean Air Act totaling over 1.8 million pounds of unauthorized air pollution released by Valero’s Port Arthur refinery since May 2014. Teaming up with LSLA community partners Environment Texas and Sierra Club Lone Star Chapter, the environmental groups' May 22 notice of intent to sue was a first step that would allow the groups to file a citizen suit against Valero after a mandatory 60-day waiting period - unless the state or the federal government sued the companies within that time frame. 

Fifty-eight days after the groups filed their notice of intent to sue, the state of Texas took up the challenge and sued Valero on July 19. Texas Attorney General (AG) Ken Paxton filed the State’s lawsuit against Valero and Premcor in state court on behalf of the Texas Commission on Environmental Quality (TCEQ), the state agency responsible for regulating industrial air emissions. The State’s suit appears to follow the groups’ notice letter as a roadmap: each type of Clean Air Act violation listed in the notice has been similarly listed in the State’s complaint. “Virtually everything listed in the State’s complaint was taken directly from our notice,” said John Beard, Chair of PA-CAN and longtime resident of Port Arthur’s West Side.

Pre-empted by the State’s lawsuit, the environmental groups are now prevented from filing a citizen suit as long as the State “diligently prosecutes” Valero. The groups will be keeping a close eye as the State’s suit progresses. “These are serious and egregious violations that have been committed, and TCEQ has been extremely slow to act on what has become a pattern of environmental abuses by Valero,” said Beard. “The State should have acted long ago. What will be telling is whether the AG will follow the rules of procedure regarding fines and penalties, or reduce or dismiss certain violations entirely. Given the State’s history of not going after these types of gross violations, we are going to be very observant of the suit to make sure the West Side community of Port Arthur is protected. So stay tuned.”

LSLA EJ Managing Attorney Amy Dinn noted that this may be the first instance where the State of Texas has sued a refinery under threat of a Clean Air Act citizen suit. “We are hopeful that the State follows through in pursuing these violations and making sure that the impacted community in the West Side of Port Arthur receives some direct benefits from any enforcement results,” remarked Dinn.

Representing PA-CAN on the case along with Dinn, Attorney Dave Nicholas, and National Environmental Law Center Senior Attorney Josh Kratka, LSLA EJ Attorney Colin Cox commented, “It’s unfortunate that it takes the threat of a citizen suit and the accompanying bad press to motivate the State to protect its citizens from Valero’s pollution. If the State fails to compel Valero to clean up its act, we will pursue further legal action.”

According to Valero’s own compliance reports filed with TCEQ, its Port Arthur Refinery has committed hundreds of violations of the Clean Air Act over the past five years, with more than 600 violations of hourly and annual emissions limits as well as dozens of violations relating to improper operation of the refinery’s large industrial flares. The refinery released over 850,000 pounds of sulfur dioxide (SO 2) alone during these illegal emission events. Detailing TCEQ’s poor compliance history  in a series of reports, Environment Texas found that the Port Arthur refinery had more unauthorized emissions of particulate matter in 2017 than any other polluter in the state. The refinery’s illegal emissions of nitrogen oxides (NO x) and VOCs further contribute to the formation of   ground-level ozone (smog), a harmful pollutant that can cause respiratory illness particularly among vulnerable populations such as children, the elderly, and those with existing asthma or cardiovascular disease.

While Valero Port Arthur spews these pollutants and additional harmful chemicals into the air including cancer-causing benzene, hydrogen sulfide, lead, and hydrogen fluorine – a chemical that could cause a deadly vapor cloud in an accidental release or explosion – approximately 36,000 residents, five schools, two community centers, four public parks, and over 20 churches sit within a 3-mile radius of the refinery. The facility is one of three major refineries and eight other hazardous facilities engulfing Port Arthur’s historically underserved West Side neighborhood, where African Americans in Jefferson County have a 40% higher cancer mortality rate than the rest of Texas,and children suffer more than double the nation’s average asthma rates.  According to the Environmental Protection Agency, Port Arthur is burdened with some of the highest rates of cancer, heart, lung, and kidney disease in the state. 

PA-CAN member and West Side resident Etta Herbert commented at the May 22 press conference. " They call this cancer alley. With all the technology available, there has got to be an answer," said Herbert.

“Valero’s past and ongoing violations of their clean air permits have directly affected the quality of life, health, and safety of residents in Port Arthur and its West Side community,” said PA-CAN Chair John Beard. “A slap on the wrist won’t cut it –we are calling on the TCEQ to uphold our right to breathe clean air. Our lives, and our children’s lives, depend on it.”

Above Left: A fire burns at Valero's Port Arthur Refinery, September 2017 / Photo: John Beard

Above Right: Valero's Port Arthur Refinery / Photo: https://www.aaroads.com/

Port Arthur Community Action Network Expresses Concern over Oxbow Title V Operating Permit

  On July 18, Port Arthur Community Action Network (PA-CAN) submitted public comments and requested a notice and comment hearing on an operating permit under Title V of the Clean Air Act for Port Arthur’s Oxbow Calcining LLC, which is seeking to renew its permit with Texas Commission on Environmental Quality (TCEQ). Represented by Lone Star Legal Aid Environmental Attorney Colin Cox and attorneys from the University of Texas School of Law Environmental Clinic, PA-CAN is gravely concerned about threats to public health, safety, and air quality that Oxbow’s Title V permit poses to Port Arthur’s West Side neighborhood, where residents are surrounded by industrial facilities.

 

The largest emitter of sulfur dioxide in Jefferson County, Oxbow emits more sulfur than nearby plants owned by Valero, Motiva, ExxonMobil, and Total combined, even though those refineries are much larger facilities. “Oxbow hasn’t made any upgrades to their facility in about 80 years. They are essentially running their stacks with no pollution controls, as if it were the 1930s,” said LSLA’s Colin Cox. “A good Title V permit is important for this facility, because it is one of the largest sulfur emitters in Texas, emitting around 12,000 tons per year.”

 

Consolidating all of the monitoring, recordkeeping, and compliance requirements for a facility’s individual Air Quality permits within one operating permit, Title V permits ideally allow state regulators and the public to better understand the requirements for each piece of the equipment in a facility. The permits should also describe the terms that Texas Commission on Environmental Quality (TCEQ) and the public can use to bring enforcement actions against a facility. PA-CAN noted numerous problems with Oxbow’s Draft Permit.

 

In 250 pages of detailed comments and attachments, PA-CAN outlined how Oxbow’s Title V permit application fails to ensure compliance with important protections for public health and safety, mandated under the Title V permit and the Civil Rights Act. PA-CAN is asking for more protective, common sense additions to Oxbow’s Title V permit, including:



Particularly concerned about the facility’s enormous sulfur emissions, PA-CAN Chair John Beard has photographed large plumes of sulfur from Oxbow's stacks filling the night sky over Port Arthur. "Oxbow was grandfathered in - TCEQ just looked at their output and said, 'That's your ceiling,'" shared Beard. "They have no motivation to reduce their pollution. What makes them the exception?"

 

In 2017, the facility was discovered releasing so much sulfur that it caused a nearby air monitor to register levels above NAAQS, measuring air quality standards for the entire area. Although Texas Commission on Environmental Quality (TCEQ) followed up with an enforcement action requiring certain changes to the facility’s processes, the agency failed to require the facility to add pollution controls, standard to most similar facilities in the U.S.  “Oxbow is still emitting the same amount of pollution that was causing the NAAQS violations, but now it’s emitting at a higher temperature, which simply causes the pollution to fly over the monitor, evading detection," explained Cox. "The fix that Oxbow and TCEQ negotiated is no fix at all, and will not protect the people of Port Arthur”

 

Commenting on TCEQ’s enforcement penalties for the violation at an August 14 TCEQ Commissioner’s Agenda meeting in Austin, LSLA EJ Attorney Rodrigo Cantu provided oral comments arguing that the Agency did not follow its own policy when assessing a penalty to Oxbow, resulting in a lower penalty to be paid.

 

Specifically, TCEQ categorized Oxbow’s 2017 violation as Moderate Harm , meaning that “Human health or the environment has been exposed to significant amounts of pollutants which do not exceed levels that are protective of human health or environmental receptors as a result of the violation.” Cantu argued that the violation, which exceeded EPA’s minimum level of air quality protection required under the NAAQS, fits the definition for Major Harm , meaning that “Human health or the environment has been exposed to pollutants which exceed levels that are protective of human health or environmental receptors as a result of the violation.” As Cantu explained, “TCEQ misinterpreted its own policy in a way that favors Oxbow’s bottom line.” Commissioners debated LSLA’s comments at the meeting, but ultimately did not change their decision, choosing instead to move forward on an Agreed Order that assesses a lower penalty.

 

PA-CAN and community partners are awaiting a response from the agency on their Title V comments, which could take several months. 

Group Client Spotlight: Pleasantville

Civic League

A historian by nature, Pleasantville Civic League's President, Mary Fontenot, has been working on a longtime project to document her community’s rich and storied past. "Pleasantville is like this onion - every time you hear one story, another unfolds," she shared. Through Fontenot’s community engagement with the Pleasantville Civic League, she is also honoring Pleasantville’s rich past by revitalizing this historic community’s present, with a keen eye towards the future.

 

The Pleasantville Civic League was established in 1951 with support from a large number of highly dedicated and engaged community members who served on the board over the years. Famous athletes, doctors, lawyers, musicians, and cultural and community leaders and luminaries from Pleasantville like Judson Robinson, Sr., founding member of the Houston Area Urban League, Judson Robinson Jr., first African American City Council member and Mayor Pro-Tem, and former City Council member and current President of the Houston Area Urban League Judson Robinson III, worked to build a long legacy of civic engagement and rich cultural life in the community. “The Civic League served as the spokesperson for the community,” explained longtime resident, Mrs. Ozenne, who was the first female officer of Texas Southern University’s police force.

 

Established as Houston’s first planned community for middle-class African Americans in 1948, Pleasantville has undergone many changes over the past 20 years. Some of the neighborhood’s cherished community-owned and operated shops and businesses like the hamburger shop, beauty shop, and the drive-in theater had been vacated in recent years as industry began expanding onto Pleasantville’s doorstep. As Fontenot has re-engaged with the community through her work with the Civic League, the group has accomplished many goals towards revitalizing the neighborhood.

 

In 2017, the Civic League led community efforts to break ground on the Judson Robinson, Sr. Community Center, a 12,800 square foot LEED-certified facility with a gymnasium, large classroom, kitchen, computer room, new playground, football field and an expanded parking lot. Officially opened in April 2018, the Community Center serves as gathering place for Civic League meetings and other community events. Collaborating with Pleasantville Area Super Neighborhood Council #57, the Civic League also led a major capital improvement project for phase one of a major storm drainage project to replace aging infrastructure and reconstruction of streets.

 

Engaged with LSLA EDI Community Advocacy Attorney Ashea Jones and EDI team member and longtime Pleasantville resident, Cynthia Hodges, the Pleasantville Civic League has been working for the last several years to modify the community’s neighborhood deed restrictions in order to preserve its integrity and character, maintaining residential lots to keep out industrial encroachment.

With a full board at the helm, Fontenot says a younger generation is now beginning to fill leadership roles, recharging the neighborhood. One of the newest Civic League members, Justin Loston, serves on the Deed Restriction Committee along with Kathy Cotton, Fontenot, and Clinton Johns, the former Civic League President, longtime coach, pastor, and baseball Hall of Famer who encourages youth to find their gift, equipping the next generation to serve each other with kindness, commitment, and integrity. Loston noted, "Because of Pleasantville's history of investment and commitment to community, we are in a unique position to create positive change."

 

Building a rapport with industry, Fontenot has worked to achieve goals with the help of commercial neighbors along the ship channel as well, including The Port of Houston, which recently completed a large cleanup of abandoned chemical barrels. “We have a great relationship with the Port,” shared Fontenot. Rumored to have been illegally dumped by a nearby petrochemical facility years ago, the barrels were inundated with floodwaters after a soil berm on the neighborhood’s south side was breached during Hurricane Harvey’s deluge. Floodwaters rose into homes along the neighborhood’s south and east edges. While the storm was still raging, Fontenot contacted the City of Houston to alert authorities about the ongoing situation. She was able to immediately connect with the Harris County Commissioner and the Port of Houston, who worked diligently to clean up the chemical barrels.

 

Aware of the ever-present environmental concerns, this year, the group turned to LSLA’s Environmental Justice team to present to Civic League members on the ITC disaster’s impacts on the Pleasantville neighborhood and immediate area. The group also worked with Dinn and EJ Team members to submit comments regarding the Texas Commission on Environmental Quality (TCEQ)'s Annual Monitoring Plan in May. The group specifically requested that TCEQ consider installing air monitors in the Pleasantville area, which lacks permanent monitors. The closest monitor is over two miles away. Other community-based nonprofit groups like Achieving Community Tasks Successfully (ACTS) have announced their work to install community air monitoring networks and draft a community plan to address environmental injustices in the area. EJ Team Managing Attorney, Amy Dinn, is looking forward to learning more about the community’s vision for addressing environmental concerns in the area to see how LSLA can continue to support the Pleasantville community.  

 

“There was a Busch Gardens here at one time,” Fontenot mused, remembering the former theme park built by Annheuser-Busch. Considering what life would be like with flamingos nesting along the ship channel instead of industrial expansion, Fontenot talked about her vision for Pleasantville’s future, seeing the neighborhood transformed into a beacon of sustainability. “Wouldn’t it be wonderful if this entire region were transformed with sustainable, green design?” she asked. LSLA’s EDI Team agrees it would.

Above: Pleasantville Civic League members at a ground breaking ceremony for the Judson Robinson, Sr. Community Center in 2017 / Photo: Courtesy Pleasantville Civic League

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

Air Alliance Houston , Caring for Pasadena Communities, Coalition of Community Organizations , Coalition for Environment, Equity, and Resilience , 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 , National Environmental Law Center , Friends of Eastwood Park , National Resources Defense Council , Neighborhood Witness , Northeast Houston Redevelopment Council , Pleasantville Civic League, Port Arthur Community Action Network, Public Citizen , Sierra Club Lone Star Chapter , South Houston Concerned Citizens Coalition, Super Neighborhoo d 48, 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 ,  and UT Health Science Center at Houston School of Public Health