July 2019 Volume 2, Issue 7

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.

This month, we're sharing updates on our continued work with individual and group clients to tackle environmental issues affecting the health and safety of communities across our service area. Also this month, almost two years after Hurricane Harvey dumped 33 trillion gallons of water on our region, communities are still recovering. Read more below to find out about Harvey recovery funding programs that may be available to you.  

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

Community Continues to Oppose Greenhouse Road Landfill’s Plans for Expansion

Since we last reported in February , the EJ team has continued to engage Texas Commission for Environmental Quality (TCEQ) with residents who are opposed to the expansion of Greenhouse Road Landfill (GRL), a Type IV Landfill which abuts their residential neighborhood near Katy. A major amendment to GRL’s Municipal Solid Waste Permit (MSW) with TCEQ, the modifications to the permit would extend the landfill’s lifetime to the year 2053 while substantially expanding its horizontal footprint and height.

After TCEQ’s public comment period ended in January, intense public opposition to the permit from community members and stakeholders including the Harris County District Attorney's office and Katy ISD spurred TCEQ to hold a second public meeting, extending the process for public participation. At the March 28th meeting at Houston Marriot Energy Corridor on Katy Road, dozens of residents expressed their frustrations over the landfill's failure to address a number of mismanagement issues that residents say have been ongoing for years.

Shocked to learn about the landfill’s plans for expansion in November 2016, LSLA client and Rolling Green subdivision resident Guillermo Lopez explained that when he first moved into the neighborhood, he was under the impression the landfill would eventually be transformed into bike trails, which Lopez envisioned his children could ride their bikes on. Instead, his entire family became sick as windblown dust, offensive odors, rats, constant noise and runoff from the landfill began to encroach onto his property regularly.

As reported previously, LSLA filed comments on behalf of Lopez and neighboring resident Linnette Figuoera this past January. Noting a lack of good neighbor behavior by the landfill and adverse impacts to residents’ health, the comments also pointed to an agreement between the landfill, Harris County and the Rolling Green subdivision that placed limits on the landfill’s size and stipulated corrective actions the landfill should have taken to reduce its impact on neighboring communities. Part of GRL's current MSW permit with TCEQ, residents and stakeholders are understandably upset over the landfill’s current expansion plans, which would negate the agreement.

LSLA clients and community members are awaiting the TCEQ Executive Director’s response to their comments. EJ attorney Rodrigo Cantú explains that while there is no set timeframe for the response to comments, he expects the ED will likely issue his response by the end of July or early August. Following the ED’s response, Commissioners may decide whether to award a contested case hearing to residents like Lopez and Figuoera, who have requested such a hearing. 

The EJ Team will continue to follow TCEQ’s administrative process on this permit in order to help residents address the landfill’s historical mismanagement issues. “Our priority is to halt this expansion given Greenhouse Road Landfill’s mismanagement of its site, including its failure to resolve a number of noxious conditions,” said Cantú.

Resident Digs in Heels over Channelview Barge Operation

As reported in our February EJ newsletter , LSLA Client Carolyn Stone, a resident in the Channelview subdivision of Lakeside Homes Addition, sued commercial barge company Harley Marine Gulf, LLC and its parent company, Harley Marine Services, Inc. (Harley) this past January for the violation of residential-use only deed restrictions. Since initiating the lawsuit, Mrs. Stone has added direct claims against City of Houston and Harris County officials in their official capacity for approving an amended plat for Harley’s properties in violation of the Texas Local Government Code provisions. Because the Channelview properties at issue are within the City of Houston’s extraterritorial jurisdiction, the City and Harris County have concurrent jurisdiction over the property under the Texas Local Government Code.

Since asserting claims against the City and County officials for their ultra vires acts in approving the amended plat in violation of applicable sections of Texas Local Government Code, both the City and County have filed motions to dismiss Mrs. Stone’s complaint, a procedural attack on the pleadings to which Mrs. Stone has fully responded and explained the basis for the claims asserted. At this time, the parties are waiting on a ruling from Federal Judge Lynn N. Hughes on how the case will proceed. 

In its answer filed in April, Harris County admitted key allegations in Plaintiff’s complaint indicating that it knew the property the Harley Marine Gulf sought to develop as a commercial was restricted to residential use only. Yet, the County approved the amended plat anyway.   Plaintiff has similar evidence of the City of Houston’s legal department’s knowledge and opinion that there were applicable, duly recorded restrictions on the property at the time the City’s Planning Department approved the plat amendment. Both approvals violated the Texas Local Government Code given that the governmental entities knew that Harley was trying to circumvent the deed restrictions in seeking the amended plat.

A central issue in this case is land usage in areas of Harris County where no zoning exists. Given that deed restrictions, which constitute a form of zoning by private agreement amongst neighbors, are the primary protections for residents in these areas, the enforcement of existing, valid deed restrictions like those that have governed Lakeside Homes Addition since 1948 is extremely important. The Texas Local Government Code includes specific protections for restrictive covenants in platting amendments that both the City and the County failed to honor. Mrs. Stone included the government entities in her suit as their cooperation with the platting request ultimately facilitated Harley Marine’s construction of an enormous maritime complex across the street from her house, which was knowingly built in violation of the restrictive covenants governing the property without first seeking any declaration of their invalidity.

"These types of situations are rampant throughout Harris County where commercial businesses begin to encroach on residential subdivisions in low-income and communities of color, bringing potential environmental hazards like poorer air quality and exposure to hazardous chemicals," shared EJ Managing attorney Dinn.

In March and April 2019, in response to the Intercontinental Terminal Company’s Deer Park Facility’s fire and subsequent water contamination, the county park at the end of Ms. Stone’s street became ground-zero for Harris County’s staged water response, as some of the highest benzene readings during that industrial incident were recorded at the TCEQ’s air monitor for volatile organic compounds at Lynchburg Ferry C1015/A165, only 1.7 miles from her house. Specifically, elevated benzene concentrations of 165.17 ppb were measured at the Lynchburg Ferry monitoring station at 9 pm on March 20. Just two months later, a collision of two barges in the ship channel near Bayport triggered further concerns of high benzene readings for the public.

Bringing home the real risk faced by placing industrial facilities near residential homes, the recent events demonstrate for Stone and her husband the true importance of restrictions for protecting residents from having to live in such conditions, while also protecting property values. Mrs. Stone expressed frustration that Harris County never notified the neighborhood it would be using the public park at the end of Stone's street for the ITC water-based response, and she's concerned that the park may not have been fully remediated, despite its use as a playground where children and families including the Stones recreate. Highlighting the need for public safety, Stone says she received no notices of elevated benzene readings in her area from the County and was never advised of proper precautions to take during the ITC Deer Park event.

Fighting Discrimination, Freeport Residents Await Ruling from U.S. District Court in Galveston

Since our last update in September 2018 on the federal lawsuit filed by LSLA Client Manning Rollerson concerning the violations of civil rights of East End residents in Freeport, Texas, LSLA EDI advocates Amy Dinn, Colin Cox, and Velimir Rasic have been responding to assertions made by the United States Army Corps of Engineers (USACE) that claim the agency has not provided any “Federal financial assistance” to Port Freeport in association with the Freeport Harbor Channel Improvement Project (FHCIP) and related port expansion projects.

Despite three written agreements between the USACE and Port Freeport that directly discuss Federal financial assistance as defined by statute for the FHCIP, as well as the Port’s express agreement in those contracts to comply with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (Title VI) and Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970, as amended, 42 U.S.C. § 4601 et seq (URA), the USACE has continued to maintain that it is not providing funds to Port Freeport, as asserted to United States District Judge George C. Hanks, Jr. in the Southern District of Texas, Galveston Division.

Currently under consideration by the Judge are the procedural motions to dismiss Plaintiff’s lawsuit filed by Port Freeport in late 2018 and by the USACE in April 2019. Plaintiff fully and timely responded to both motions and argued that the Court has jurisdiction over both defendants and the claims asserted against them in his complaint. Rollerson’s suit challenges the USACE’s denial of his administrative complaint based on an absence of Federal financial assistance and alleges that Port Freeport has intentionally discriminated against East End residents in acquiring property for its planned expansion projects. The Court may issue its ruling at any time.

In the twenty months since Mr. Rollerson, in coordination with other concerned residents and property owners in the East End, filed his administrative complaint with the federal government under Title VI, Port Freeport has acquired over thirty additional properties in the East End. Residents remain deeply concerned about the fate of their community, which they feel requires intervention by the Court to force Port Freeport to stop discriminating against residents and ensure that Title VI and URA requirements are met to protect East End residents, who continue to be displaced by the Port’s expansion plans.

Acres Homes Community Mobilizes to Oppose Concrete Batch Plant

Since we last reported in November 2018 , hundreds of community members in Acres Homes have mobilized over the past year to voice objection to Soto Ready Mix’s application to Texas Commission on Environmental Quality (TCEQ) for an Air Quality Permit to operate a concrete batch plant across the street from Highland Park and Community Center , a treasured community gathering space. 

LSLA Environmental attorney Colin Cox has been working with community members in Acres Homes to challenge the permit and presented several times to the community regarding the proposed plant in the past year. On May 15, TCEQ’s Executive Director released a response to public comments, which made no changes to the draft permit based on its assessment that it complies with the standard permit, wholly ignoring community objects that the proposed location is across the street from a public park. “Children are going to be breathing this pollution every day. The concrete company has done no investigation into how the plant will impact those children or the many people living nearby, and TCEQ says they don’t have to,” shared LSLA’s Colin Cox. “Thankfully, affected community members are entitled to a hearing to investigate the health impacts.”

On June 7th, White Oak Terrace resident and community leader Felicia Light hosted a meeting at Highland Community Center to inform community members about TCEQ’s contested case hearing process, helping residents meet the agency’s June 14th deadline for hearing requests. At the meeting, Cox provided education to residents on the process along with Corey Williams of Air Alliance Houston . 

A member of the White Oak Terrace Civic Club and former Harris County Precinct 1 Deputy dealing with mental health warrants, Light has been a strong advocate for her community throughout the public participation process, traveling to Austin four times to speak with her elected officials. “I belong to this community, and I am concerned,” shared Light. Raising awareness with her Civic Club through local news media including Channel 13, Channel 2, the Houston Chronicle and community news outlets including the Leader and the Defender, Light says that neighbors have had to become community watchdogs while the batch plant site was cited seven times in the past year for violating City code.

Elected representatives for Acres Homes have also been engaged in this ongoing fight. Most recently, on June 26, Congresswoman Sheila Jackson Lee submitted a letter to TCEQ advocating against the batch plant. Senator Jarvis Johnson recently announced he will host a community meeting and panel discussion on July 22 at Acres Homes Multi-Service Center to discuss actionable next steps the community can take. LSLA's Colin Cox will be among the panelists.

Residents are awaiting TCEQ’s decision on their requests for a contested case hearing, which involves being granted standing as an affected person defined as living within 440 yards (1/4 mile) of the batch plant. Once a contested case hearing is awarded by TCEQ, a preliminary hearing is typically scheduled for the State Office of Administrative Hearings (SOAH) in Austin. As Cox explains, community members still have options to become engaged at this point. “Anyone is allowed to come to the Preliminary Hearing and ask the judge to be admitted as a party, even if they did not submit a request for a hearing,” shared Cox. "Then it's up to the judge to grant or deny the request." LSLA plans to remain engaged on this issue with community members as the permit moves forward through TCEQ's administrative process.

Community Remains Concerned over

City of South Houston’s Proposal to Remove Limits on Mercury in Treated Wastewater

First reported in our December 2018 newsletter , community group and LSLA Client Caring for Pasadena Communities continues to engage Texas Commission on Environmental Quality (TCEQ) regarding the City of South Houston’s (COSH) permit amendment to remove the mercury limits on treated wastewater that flows into Berry Creek. In April, TCEQ’s Executive Director released his response to public comments, considering the entirety of comments submitted by over 100 concerned community members. Despite clear public opposition to this major amendment to COSH's municipal wastewater permit , the agency decided to make no changes to the draft permit sought by COSH, which if approved would also do away with the City’s weekly testing to monitor its effluent for mercury.

A persistent neurotoxin, mercury accumulates in fish through a process known as bioaccumulation, and can contaminate water and soil. Concerned about the health and safety risks posed to predominantly minority, environmental justice communities who live and recreate along Berry Creek and nearby waterways, CPC’s public comments highlighted the City’s troubled history related to its mercury testing. On May 8th, LSLA’s EJ Advocate Rodrigo Cantú filed a timely Request for Reconsideration on behalf of CPC, emphasizing the risks to health and safety posed by the amendment while urging the TCEQ to preserve its requirements for more frequent testing by the City to monitor its effluent for the contaminant - a standard practice at the City’s wastewater treatment plant for years. 

To continue public awareness of this permit, CPC hosted a community meeting on July 11 with LSLA community partner Bayou City Waterkeeper . At the meeting, EJ Attorneys Cantú and Barham Richard discussed remaining options for the community to oppose the permit.

Based on the participation at the community meeting, the public wants TCEQ to maintain the weekly testing for mercury beyond the semi-annual testing proposed by COSH, as the City's plan is not protective enough of public health. As Cantú explains, “This is about maintaining safeguards that are important for assessing the health of our bayous and the communities that have a close relationship to them.”

TCEQ recently assigned the permit application docket # 2019-0667-MWD, which indicates the Commissioners will consider contested case hearing requests like the one filed by CPC and others. You can view TCEQ’s upcoming meeting agendas for scheduling related to this docket at: https://www.tceq.texas.gov/agency/decisions/agendas/comm . The EJ Team will continue to provide updates as this proposed permit moves through TCEQ's administrative process.

Above: An osprey carries a fish caught on Sims Bayou near Berry Creek / Photo: courtesy Rebecca Sallans & Save Glennbrook Green Space

Nuclear Regulatory Commission (NRC) Holds Hearing on Transport of Nuclear Waste

through Texas

In December 2019, LSLA EJ Advocates Amy Dinn and Rodrigo Cantú submitted comments on behalf of Caring for Pasadena Communities (CPC) concerning potential transportation routes through Harris County that would be used to transport spent nuclear waste to a proposed temporary nuclear storage facility in Andrews County, Texas. CPC's comments expressed concern for communities along the Houston Ship Channel that would face impacts as spent nuclear fuel is transported through Harris County by barge or rail from various decommissioned and shutdown nuclear reactor sites across the U.S. and shipped to the proposed permanent facility in Andrews County, a site still under review by the Nuclear Regulatory Commission (NRC). Specifically, CPC took issue with the failure of NRC's Environmental Impact Statement to specify the potential routes for transporting the spent nuclear waste, and failure to adequately assess potential impacts to communities if an accident were to occur during transportation of the spent fuel. NRC studies suggest a major leakage of spent nuclear fuel or high-level radioactive waste might impact an area of 40 square miles.

Earlier this month, the NRC held a public hearing in Midland, Texas to hear further concerns from interested environmental groups and the oil & gas industry regarding their standing to challenge the proposed license application. Oil and gas companies drilling in the Permian Basin would prefer not to have nuclear waste stored in Andrews County, as storage of the highly hazardous material could interfere with their operations.

After the hearing, the NRC will likely respond to these standing requests by the end of the year. However, an official with Interim Storage Partners, one of the entities seeking the license from the NRC, said it will be a year and a half before the NRC makes a decision on the licensing application. It could be another four or five years after that before the facility would open. 

Given the concerns raised in the public comment process on the license application, LSLA plans to stay on top of developments related to this nuclear waste storage facility, and is happily allied with the oil and gas industry in fighting this temporary storage facility from being based in Texas.

Above: Map of nuclear sites, proposed Andrews site, and rail lines showing hundreds of miles of possible rail transportation routes / Image: Sophie Dulberg, Texas Housers

Harvey Recovery Funding in the News

On Saturday, June 15th, LSLA community partner Coalition for Environment, Equity and Resilience (CEER) hosted a Town Hall in Port Arthur along with Texas Appleseed and Port Arthur Community Action Network (PA-CAN) to provide information and services to Port Arthur residents who are still recovering from Hurricane Harvey.

Joined by LSLA attorneys Shrushti Kothari and Kimberly Dike of LSLA's Disaster Recovery Unit, Sarah Frazier, a paralegal in LSLA's Beaumont Office, and Tulane environmental law candidate and CEER intern Rosa Acheson, EJ team members assisted residents alongside a dozen other non-profit and governmental organizations at the Town Hall. EJ Managing attorney Amy Dinn presented on the EDI team's continued work with LSLA client PA-CAN helping Port Arthur residents with environmental and housing concerns after Harvey unleashed over 60 inches of rain on the community in the Fall of 2017.

In the coming months, CEER plans to continue its discussions on Harvey-related recovery funding and programs through additional Town Halls planned for Baytown, East Montgomery County, Galveston County, Beaumont and North Jefferson County, and Hardin. Dates and locations of upcoming Town Halls will be posted on CEER's webpage at: https://ceerhouston.org/

For more information, please contact CEER at: 713-331-9913

In other Harvey recovery news, the City of Houston recently announced that $400 million dollars of HUD funding is available for Houston homeowners still recovering from Harvey. The help is available through the City of Houston’s Homeowner Assistance Program (HAP).

What is HAP?

HAP helps homeowners affected by Hurricane Harvey repair and rebuild their homes. The housing program is administered by the GLO and provides homeowner assistance through:

Have a Question?

Contact the Texas General Land Office via email at: [email protected] – please include your full name, address, and county.

Recovery Hotline:

1-844-893-8937 (Toll Free)

512-475-5000

Phone Hours:

Monday – Friday, 8am – 5pm

Who Can Qualify?

Homeowners affected by Hurricane Harvey who live in one of the eligible counties. Please note the  City of Houston and  Harris County are administering their own recovery programs.

An application must be submitted along with required documents for consideration. The program is first-come, first serve and only available for a main home (primary residence).

How Can I Appeal a Denial Decision?

To appeal your denial letter, you must first appeal with your regional applicant coordinator. If you receive a second denial, you may appeal directly to the GLO for a final decision. To learn more about the appeals process, please review the following document: Know Before You Appeal

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