June 2019 Volume 2, Issue 6

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

Fighting for Clean Air,

Port Arthur Community Action Network (PA-CAN) Announces Intent

to Sue Valero Port Arthur

Alleging more than 1.8 million pounds of unauthorized air pollution was emitted by Valero’s Port Arthur Refinery over the past five years, the community group and Lone Star Legal Aid client, Port Arthur Community Action Network (PA-CAN), recently announced that it intends 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. 

Teaming up with LSLA community partners Environment Texas and Sierra Club Lone Star Chapter, PA-CAN submitted its notice of intent to sue Valero on May 22nd  - a step that will allow the groups to file a federal suit with the U.S. District Court in Beaumont within 60 days of that date.

Represented by LSLA Environmental Justice attorneys Colin Cox and Amy Dinn along with attorneys from the National Environmental Law Center, the groups announced their intent to sue in a May 22nd press conference held in Port Arthur. “Air is Life, and everyone has a right to breathe clean air. Our lives—and our children’s lives—shouldn’t be burdened by Valero’s illegal pollution,” said President of PA-CAN John Beard, Jr. “They say they want to be a good neighbor – well it’s time for them to step up to the plate and be one.”

Known as a citizen suit, the lawsuit is a provision in federal law that allows private citizen groups affected by violations of the Clean Air Act to bring enforcement upon illegal polluters when state or federal environmental agencies fail to regulate those entities.

Referencing a report released by his organization in January 2019, Executive Director of Environment Texas Luke Metzger said that Valero’s Port Arthur Refinery “stood out as one of the worst polluters in the entire State of Texas,” releasing more unauthorized particulate matter in 2017 than any other facility in the state. The pollutant is linked to a number of cardiovascular problems, including heart attack, stroke, and premature death. “We’re asking Valero to come into compliance, stop breaking the law, take some responsibility for these violations, and pay a penalty,” said Metzger.

A former investigator and enforcement official for Texas Commission on Environmental Quality (TCEQ) for over 40 years, Clean Air Program Director of Sierra Club’s Lone Star Chapter Neil Carman noted, “This case is a shocking example of why we need the Clean Air Act.” Not only for the failure of Valero to comply with the Clean Air Act, said Carman, “but an outrageous example of how TCEQ doesn’t protect the public health and the right to clean air, because they’re not enforcing the law. This pollution doesn’t stop at the fence line. It goes out of the flares and smokestacks, drifting all over the community for people to breathe in.” 

According to Valero’s own compliance reports filed with TCEQ, its Port Arthur Refinery has committed hundreds of violations of the Clean Air Act since May 2014, with over 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. “Valero’s Port Arthur Refinery has a long history of repeated environmental offenses that endanger the health of people who live and work nearby,” said LSLA’s Cox. “Unfortunately, small fines from TCEQ have done nothing to change that behavior. PA-CAN is bringing this lawsuit to hold Valero accountable for their past violations and to prevent violations in the future.”

Spewing cancer-causing benzene, hydrogen sulfide, particulate matter and other harmful pollutants including lead and hydrogen fluorine, a chemical that could cause a deadly vapor cloud in an accidental release or explosion, Valero's Port Arthur refinery is one of three major refineries and eight additional hazardous facilities engulfing Port Arthur's Westside neighborhood. And the health effects are staggering. African Americans in Jefferson County have a 40% higher cancer mortality rate than the rest of Texas. Children in Jefferson County 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.

Speaking at the press conference, PA-CAN member Etta Herbert emphasized the staggering health effects which have caused fear and concern, as multiple family members received cancer diagnoses in recent months, including Herbert's daughter, her brother, sisters, and husband. "'Cancer alley' is what they call it," remarked Herbert, "With all this technology, there has to be an answer."

Read the notice of intent to sue here. 

Watch a video of the May 22nd press conference on the Environment Texas Facebook page.

Top: Sierra Club's Neil Carman, PA-CAN community members, LSLA's Colin Cox and PA-CAN President John Beard, Jr. at the May 22nd Press Conference / Photo: Amy Dinn, Lone Star Legal Aid

Above: A tank fire burns at Valero's Port Arthur Refinery in September 2017 / Photo: John Beard, Jr.

TxDOT’S Historical Resources Report Omits Houston’s

Independence Heights

F or more than 14 years, Texas Department of Transportation (TxDOT) has been planning the North Houston Highway Improvement Project (NHHIP), a massive expansion of Interstate 45 that will completely reshape freeway transit around downtown Houston, with major changes to I-45, I-69, I-10 and Hwy 288 over the next decade.

The proposed expansion of I-45 from north of downtown to Beltway 8 will result in impacts to multiple neighborhoods along either side of I-45 North, with hundreds of residents facing displacement. Located just northwest of the intersection of I-610 and I-45N, the historic neighborhood of Independence Heights is one of those neighborhoods facing impacts. Specifically, the NHHIP will result in the taking of 44 properties in Independence Heights, including 31 residential homes and a historic African American church that has been a religious and cultural foundation of the community for more than 100 years. 

Unfortunately, when TxDOT prepared its most recent report on the Project’s expected impacts to historical resources required under NEPA, the agency completely left Independence Heights out of its survey. Listed in the National Register of Historic Places, Independence Heights is a destination site on state historic heritage trails such as the Texas Independence Trail and holds the distinction as the first town incorporated by African Americans in the state of Texas.

Representing the Independence Heights Redevelopment Council (IHRC), Amy Dinn of Lone Star Legal Aid’s Environmental Justice Team raised concerns over TxDOT’s glaring omissions via comments submitted to the agency on May 25, 2019. Referencing the neighborhood’s historic role in Texas history, IHRC’s comments state that the development of Houston freeways has continued to threaten the survival of African American communities in Houston, not only the result of property originally taken in order to build the freeways, but also due to the negative impacts of flooding and other effects of the freeway construction itself, fraying the social fabric of communities of color. Adding insult to injury, the group’s comments stated, in ignoring the historic nature of Independence Heights, TxDOT appears to rely on previous takings of neighborhood property for the I-610 freeway construction half a century ago as justification for its current neglect of the community.

Using historic documents, press clippings and photos of the day, many of which were provided by historian Aimee von Bokel, PhD, IHRC’s comments to TxDOT retell the history of Independence Heights which began in the early 1900s, a time in which African Americans faced enormous difficulties securing property and establishing a place to live in the South. Having faith in the message of self-determination advocated by Booker T. Washington, the early pioneers of Independence Heights secured property from the Wright Land Company, set up their own system of governance, and became the first town incorporated by African Americans in Texas in 1915. Annexed by the City of Houston in 1929, Independence Heights remains a community that reflects and cherishes its values, accomplishments and history to this day.

In the early 1960s, the City of Houston opted to route Loop 610 through Independence Heights, severely impacting the neighborhood as 330 lots (approximately 67 acres) were taken from the community. The project returned no benefits to the neighborhood, which continued to lack basic infrastructure like sidewalks until the 1980s. To make matters worse, the I-610 construction resulted in flooding due to the installation of a too-small culvert with the freeway, essentially creating a dam that floods Independence Heights in heavy rains. Facing property losses due to the NHHIP in addition to ongoing flood control buyouts, Independence Heights is now grappling with multiple threats, as the neighborhood is also a target for speculative development and gentrification due to its proximity to the popular Houston Heights neighborhood. 

Under NEPA, the federal law requiring the assessment and evaluation of potential environmental impacts to historical resources, TxDOT is required to mitigate the NHHIP’s impacts on affected communities. “Mitigation” under NEPA can include: avoiding the impact altogether by not taking a certain action or parts of an action; minimizing the impact; repairing or restoring the affected environment; or compensating for the impact by replacing or providing substitute resources.

One of the community assets requiring mitigation is a church located on the 610 access road. For over 100 years, Greater Mount Olive Baptist Church has been a religious and cultural foundation of Independence Heights. Rebuilt in 2016 after a fallen tree severely damaged the structure during Hurricane Ike, the brand new building will be condemned for the NHHIP. In addition to relocating the church with an expanded, sustainable new facility and adequate parking, IHRC is seeking a pocket park with a dedication to the church as memorial to the significant contributions of its congregation to the history of Independence Heights.

As compensation for the loss of a large portion of the neighborhood’s historic district including the church and multiple historic residences, IHRC is requesting assistance from TxDOT to install community gateways and historic signage, and to document its historic assets. The group’s goals additionally include assisting displaced families with relocation opportunities through the construction of new affordable housing and the establishment of a community land trust. In advocating for TxDOT’s recognition of the cumulative impacts of infrastructure projects on the community’s historic resources, IHRC hopes to see the history of Independence Heights preserved and celebrated, rather than diluted by continued encroachments.

Director of IHRC and long-time advocate for Independence Heights, Tanya Debose remains hopeful for her community. “Houston has not been preservation-friendly in general, so when it comes to communities of color, there’s been a huge disconnect in protecting historical and cultural assets which are even more threatened by these types of infrastructure projects. Thanks to Lone Star Legal Aid, we were able to respond to TxDOT and shine a spotlight on the great need to preserve our valued historic and cultural resources in Independence Heights.”

Emphasizing the cumulative impacts of decades of freeway expansion on communities of color, which also took her grandfather's home in 1959 for the construction of I-610, Debose spoke at a press conference in front of City Hall on June 13th, where LSLA community partner Air Alliance Houston announced the launch of a report from a Health Impact Assessment (HIA) on the NHHIP . Evaluating the project’s wide-ranging adverse health impacts on children and communities, the report looks at potential changes to air quality, safety, flooding, and mobility that would occur as a result of the expansion near nine secondary and elementary schools along the I-45N corridor.

Read IHRC’s comments to TxDOT here .

Read Air Alliance Houston's HIA report and one-page summary here .

Watch a video of the June 13th press conference here (Debose’s remarks begin at 19:44).

Top: Tanya Debose, Director of Independence Heights Redevelopment Council, looks out from the porch of Greater Mount Olive Missionary Baptist Church / Photo: Rebecca Novak

Above (within text): Newspaper clipping from January 17, 1915 announcing incorporation of Independence Heights / Image: The Houston Post, Vol. 29, No. 289, Ed. 1 Sunday, January 17, 1915, p. 7, via Portal to Texas History



Above: Map of Independence Heights showing proposed area to be impacted by NHHIP and endangered historic properties / Image: Sophie Dulberg, Texas Housers

Environmental Justice Communities Weigh in on TCEQ's Annual Air Monitoring Plan

Representing the community groups Caring for Pasadena Communities (CPC), Port Arthur Community Action Network (PA-CAN), and Pleasantville Civic League, LSLA's Environmental Justice team recently submitted comments to Texas Commission on Environmental Quality (TCEQ) on the agency's 2019 Annual Monitoring Network Plan. 

Evaluating the Beaumont-Port Arthur and Houston-Galveston-Brazoria regional networks, the comments acknowledged environmental justice concerns and health impacts faced by residents surrounded by numerous hazardous facilities releasing tons of pollutants annually into Pasadena and other neighborhoods along Houston’s Ship Channel, Port Arthur’s Westside community, and Houston’s Pleasantville neighborhood, located just north of the ship channel west of I-610. A burden that has historically been placed on lower income and minority communities across the US, the siting of hazardous facilities within these three communities places a disproportionate burden on the health and safety of community members living there, the comments noted.

Each year, TCEQ reviews its monitoring network throughout Texas in order to ensure the state is meeting federal air monitoring requirements under Title 40 of the Code of Federal Regulations Part 58. The agency then develops a new monitoring network plan with the proposed changes from the previous year as well as future proposed changes to the network. Taking into account air monitors that measure “criteria pollutants” for federal air quality standards known as National Ambient Air Quality Standards (NAAQS), TCEQ also considers monitors that gather weather and air quality data in its plan. The agency then allows 30 days for public comments before submitting its new monitoring network plan to the U.S. Environmental Protection Agency (EPA) for review and approval by July first.

The comments pointed out a number of gaps in TCEQ’s current monitoring system. First, not all monitoring stations track all the criteria pollutants. Therefore, the comments noted, the sheer number of monitors is not an indicator of how well the pollutants are being monitored within a community, since many different kinds of pollutants are emitted by the industries that surround those communities. Second, not enough monitors are located within the environmental justice communities where people actually live, leaving residents unsure of how they are being impacted by emissions from facilities on a daily basis. Third, citing recent emergency responses including the March 2019 ITC Deer Park fire and an April 2017 industrial fire at Port Arthur’s German Pellets storage facility that filled the Westside community with smoke for several months, the groups’ comments highlighted the need to make information more readily available to communities in the event of emissions upsets, fires, or other disasters, including a stronger mobile monitoring system that can be deployed during such emergencies, allowing community members to understand the risks to their health in real time.

 

"We need accurate data, so that our community can get a better grasp of what's going on in our atmosphere," shared Mary Fontenot, President of Pleasantville Civic League.

 

The comments also pointed out several neighborhood-specific gaps in the monitoring network, including:

 

"We definitely need more monitors in Pasadena,” shared Patricia Gonzales, Caring for Pasadena Communities founder, “especially because the 225 corridor is an industrial corridor.” A longtime advocate for installing monitors within communities, Gonzales has made multiple requests to TCEQ over the years for monitors to be installed near schools in Houston’s Manchester neighborhood.

 

Looking at the NAAQS criteria pollutants monitored by TCEQ including sulfur dioxide (SO ₂ ), Ozone (O ₃ ), Particulate matter (PM) and Volatile Organic Compounds (VOCs), the groups also noted the following inadequacies:

The comments also recommended that TCEQ monitor for the non-criteria pollutant Hydrogen Cyanide (HCN), a colorless gas with a faint, bitter almond-like odor. A byproduct of the crude oil refining process, hydrogen cyanide is a poisonous gas that was used as a chemical warfare agent during World War II.  EPA recognized in 2002 that industry-reported emissions of the dangerous neurotoxin were much higher than had been previously understood, with facilities including Valero Houston Refinery, Shell Deer Park Refinery and LyondellBasell Houston Refinery emitting hundreds of thousands of pounds of HCN per year. The comments additionally urged the TCEQ to quantify the risks posed to community members from this deadly chemical.

 “It is the hope of our group clients’ contributing comments on behalf of these environmental justice communities that the TCEQ will work to expand its air monitoring network, both stationary and mobile monitors, to ensure that the community has access to information about their air quality on a daily basis as well as during emergency responses,” said EJ Managing attorney Dinn.

Group Client Spotlight: Houston Gardens Civic Association

When Kathy Gunther moved to Houston Gardens in 2009 to help her family, she wound up helping her entire community as well. Returning to the northeast Houston area where she grew up, Gunther was dismayed to see a number of environmental issues affecting her neighborhood. Illegal dumping occurred regularly on some blocks, with piles of tires suddenly appearing overnight, creating a breeding ground for mosquitoes and a tacit invitation for further dumping. Many streets, even those leading to neighborhood schools and parks, had no sidewalks. Right-of-ways were often left un-mowed, while drainage ditches were un-cleared, causing flooding during heavy rains. Surrounded by high fences, impromptu truck storage yards had begun to pop up next to homes in the residential neighborhood, diesel particulate filling the air as trucks idled for hours on end many mornings.

Left vulnerable by Houston’s lack of zoning, the encroachment of commercial operations was compounded by a lack of ability to enforce at the neighborhood level. “There were no homeowners associations, no deed restrictions,” shared Gunther. So she decided to tackle issues head on by getting involved. Posting signs around the neighborhood, Gunther advertised a “Civic Club coming soon near you!” with meeting date and time. Residents began to show up to meetings. 

In 2016, Houston Gardens Civic Association was officially formed with Gunther as its first President. Formally incorporated in December 2017, the group is going strong with the support of a cadre of similarly civic-minded neighbors. Along with Gunther, current Board members include Co-Vice Presidents Mike Frazier and Matthew Wright, Treasurer Cvera Gibson-White, and Secretary DeAnna Sloan.

“There was a 30-year gap between HGCA’s formation and previous civic clubs in the neighborhood,” explained Frazier, "So we had to start from scratch.”

In 2017, HGCA began working with Lone Star Legal Aid's Equitable Development Initiative in order to fight back against neighborhood encroachment from industry and tackle some of the many environmental injustices the community has faced for years with little traction. With help from EJ attorney Colin Cox, HGCA is currently in the process of establishing neighborhood deed restrictions to prevent further industrial and commercial development. “We've been successful in getting a small part of the neighborhood done so far, including a yard parking ordinance to stem the damages to our infrastructure from multiple commercial vehicles parking in yards,” said Gunther.

Working with LSLA Community Advocacy attorney Ebony Young, HGCA is in the process of applying for tax-exempt status with the IRS as a 501(c)(3) nonprofit. The group intends to apply for grants for neighborhood improvement and beautification projects, while the tax-exempt status will afford the group additional legal rights and protections.

Additionally, Cox has provided education to HGCA on the public participation process with Texas Commission on Environmental Quality (TCEQ) regarding air permitting on a concrete batch plant expansion just south of Houston Gardens. While the existing batch plant on Homestead Road was ultimately allowed to expand, HGCA is concerned about the proliferation of new concrete batch plants in residential Houston neighborhoods like theirs. Without zoning or deed restrictions, the plants are practically assured a permit from TCEQ, even if located across the street from a park or daycare center.

“Absent the support for siting restrictions from regulatory agencies and local governments, neighborhoods are forced to mobilize or fight every permit or encroachment of hazardous conditions in their neighborhood,” said EJ Managing attorney Amy Dinn. “Putting in private zoning, as provided by deed restrictions, may be a community’s only option to protect its neighborhoods in the long term. Lone Star’s EDI Unit is focused on solutions to these systemic challenges in an effort to preserve and protect our environmental justice communities.”

Like Gunther, HGCA Co-Vice President Frazier returned to his childhood home of Houston Gardens in the 2000’s. Frazier's mother, a neighborhood leader in the 1960's, was a strong presence in the community while Frazier was growing up. He describes a heady atmosphere of forward motion, as "Super Parades," were held quarterly. Huge events that brought the neighborhood together, the governor and state and city legislators including the late Mickey Leland and Barbara Jordan were usually in attendance. "There was always some kind of activity happening," shared Frazier.

Located just north of I-610 near Homestead Road, Houston Gardens was first established in 1936 under Suburban Resettlement Administration, part of Franklin D. Roosevelt's New Deal. Intended to help families and farmers out of poverty in the Great Depression, Resettlement Administration communities were typically designed with everything needed for self-sufficiency, including farms, gardens, schools and community centers. With each parcel of land being at least one acre, the unique layout of Houston Gardens forms a large oval shape with generous pie-shaped plots of 2-3 acres each flanking the ends. 

That relaxed feeling of rural life, yet being close to the conveniences of downtown, is what led resident and member of HGCA John Sloan to purchase 6 acres of land for his entire family in 1995, where Sloan, his mother and siblings still reside. Sloan's neighbor raises beautiful Tennessee trotters, often taking his horses out on the trails near Sloan's home. "We’d like to preserve this kind of life for our community," says Sloan, "It's something you can't find anywhere else in the City of Houston."

Over the years, Sloan has made so many phone calls to 311 that "they've got my name," he says. Holding numerous meetings with the City of Houston, Harris County and Southern Pacific Railroad, Sloan looks forward to seeing a resolution on some of the neighborhood’s environmental injustices, including loud train horn blasts in the middle of the night and illegal dumping that still occurs on streets near the train tracks. Sloan suspects some of the dumping is from vehicles that get stuck waiting for a train at the tracks, as two large landfills sit just across the tracks from Houston Gardens.

Along with Gunther and Frazier, Sloan and HGCA look forward to seeing their neighborhood’s infrastructure problems addressed by Harris County and others, including clearing the clogged drainage ditches and completing a promised beautification and expansion of a nearby detention pond in order to address flooding issues. Sloan sees the detention pond improvement as a great opportunity to create a new sustainable park similar to Bear Creek Pioneers Park near the Addicks Resevoir. "They could turn it into a soccer field, baseball field, walking trails, bicycle trails - it could be anything!" Sloan enthused.

EJ Team Welcomes

New Staff Attorney,

Barham Richard

L one Star Legal Aid is proud to welcome Barham Richard as a staff attorney to its Environmental Justice Team as part of its Equitable Development Initiative funded by a grant from the Houston Endowment . Licensed to practice law since 2006, Barham spent the last 12 years as an attorney with the Texas Commission for Environmental Quality (TCEQ) . Having first gained significant administrative hearing experience with the TCEQ, as a staff attorney managing a heavy enforcement case load, Barham then spent nine years as an Assistant General Counsel for the agency, providing legal and policy analysis to the Commission on a multitude of matters concerning proposals for decisions, hearing requests, use determinations, and rulemakings. He also has substantial experience participating in rulemaking for the agency, coordinating and analyzing proposed bills for the Commission. He also managed pending litigation on behalf of the TCEQ with the Office of the Attorney General. 

Describing his new position with the EJ Team as his “dream job," Barham is ready to hit the ground running, bringing his experience and perspective from having worked with TCEQ to bear on the systemic issue of environmental injustice facing many communities in Lone Star Legal Aid’s seventy-two county service area. “Environmental Justice was one of the first environmental issues to hit me as being of great significance, not only to our future living environment, but to our society as a whole. It has become commonplace to place the brunt of society's environmental burdens on communities of color, lower income communities, and those with no voice. While I am proud of the 12 years of work that I did with TCEQ, and I know that the agency and I did our best to be fair given the laws of the land, I am even more proud to be joining LSLA in representing the many that suffer for the profit of so few.”

In 2004, Mr. Richard graduated from Vermont Law School with a Doctor of Jurisprudence and Masters in Environmental Law. His undergraduate work was at the University of Texas at Austin earning a Bachelor of the Arts degree in English and Literature in 2001.

Top: Barham Richard / Photo: Courtesy Barham Richard

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