Groups ask feds for compliance review of Texas’ top environmental agency

A Dallas community advocacy group and 12 other organizations are calling for a federal review of the Texas Commission on Environmental Quality, alleging the agency violates civil rights and environmental laws by failing to evaluate how minority and low-income neighborhoods are affected by air pollution from industrial sites.

The 61-page petition filed with the Environmental Protection Agency also alleges the TCEQ limits residents’ input during the permitting process. The groups are seeking a compliance review of the state’s air permitting program and an order that the TCEQ revamp its regulations. The TCEQ is the state’s main environmental regulator.

“A lot of the groups involved have been raising these issues with the TCEQ for years through individual permits, and it was important to go this route because we weren’t seeing any changes being made in response,” said Erin Gaines, a senior attorney with environmental law nonprofit Earthjustice and co-lead lawyer for the petitioners, on Wednesday. “We believe these are systemic issues and, without EPA stepping in, TCEQ is not going to change their practices.”

Stella Wieser, a TCEQ spokeswoman, said the agency declined to comment. The EPA didn’t respond to requests for comment on next steps in the petition process.

The local group involved, West Dallas 1, has been trying for several years to get concrete batch plants and an asphalt shingle plant out of the area. It says the majority Latino neighborhoods in West Dallas receive little to no public notice from the TCEQ when an industrial site is seeking permits to operate in the area and that it falls on residents and community advocates to draw attention to how close these sites are to homes, schools and other places where people congregate.

The groups also include national environmental organizations such as the Sierra Club and the Environmental Integrity Project as well as other nonprofits and coalitions based in Houston, El Paso, Corpus Christi, Port Arthur and the Rio Grande Valley. The petition was filed with the EPA on June 28.

Raúl Reyes, president of West Dallas 1, said in a statement that his neighborhood is like many underserved communities across Texas where the burden of proving environmental harm falls to residents.

“It’s time TCEQ protected our communities and not the polluters,” he said.

Industrial manufacturing and its environmental impacts have deep roots in West Dallas, including with a major lead smelter plant based there from the 1930s to the 1980s that produced high levels of lead found in children living near the plants. Contamination was also found in the soil at schools, parks and homes.

According to 2020 census data, around 28,000 residents live in the 75212 ZIP code and 62% are Hispanic. The median household income is about $40,000. Close to 24% of residents live below the poverty line, higher than the 11% rate for the Dallas metro area.

A 2020 report by researchers at Paul Quinn College found the air pollution in one West Dallas ZIP code, 75212, among the worst in the city.

Late last year, Dallas reported 38 concrete batch plants were holding active permits in the city and TCEQ records showed at least five concrete manufacturers permitted in the 75212 ZIP code. Residents have cited the batch plants as sources of dust and other particulate matter that they say affects their breathing.

“Texas’ failure to comply with basic Clean Air Act requirements has resulted in densely populated urban areas in the state, such as the Houston, Galveston and Brazoria areas, existing in a state of perpetual nonattainment with health and welfare-based federal standards,” the petition states. “And the evidence is clear that people of color, communities comprised of people living near or below the poverty line and other marginalized populations are disproportionately hurt by this industrial pollution.”

The TCEQ announced last year that it was launching an environmental justice initiative to increase public participation and access in multiple languages to TCEQ decision-making processes. The April 2021 announcement mentioned the creation of goals and an action plan to do so.

Those plans are listed on the state regulator’s website under “Title VI Compliance,” a reference to Title VI of the Civil Rights Act of 1964, which bans programs receiving federal money from discriminating based on race, color or national origin.

Under its public participation plan, the agency says it’ll work in a transparent way “with awareness of and sensitivity to the changing demographics of Texas.” It also lays out strategies such as how to help the public better understand how the TCEQ works, how officials plan to reach underserved communities and who is responsible for coordinating language interpretation and translations at TCEQ events.

But a state legislative report released in May that reviewed the TCEQ found the agency isn’t open and transparent enough about what it does and how decisions are made, leading to the erosion of public trust.

The report by the state’s Sunset Advisory Commission said permitting meetings “rarely result in meaningful public input” and that publicly available data on TCEQ’s website is missing and hard to find, among other issues.

“While TCEQ reviews research on pollutants and develops scientific standards to protect public health, the public rarely knows of, much less participates in, these processes,” the report said. “This lack of openness and public participation discourages those trying to provide input on how such research and standards impact their day-to-day lives.”

The Sunset Advisory Commission made several recommendations, including that the TCEQ improve its website and public notifications and provide more opportunities for public input on permit applications before they are considered for approval.

The petition also accuses the TCEQ of violating Title VI.

Residents and groups from around the state have asked the TCEQ to evaluate the environmental justice effects of individual air permits before approving them, but the TCEQ has refused to do any, according to the petition.

State law allows people recognized as “affected persons” to seek an administrative hearing to challenge a proposal to approve an air permit application. According to the petition, the TCEQ typically defines that term as people who own property or live within 1 mile of a proposed industrial site.

The groups seeking the EPA review say that cuts out residents who live outside that zone but are still affected and that it doesn’t account for the cumulative effect of having several industrial sites in one area.

The petition also alleges that the state agency allows air permit applicants to withhold public information such as emissions data under the guise that it will disclose trade secrets and sensitive business information.

It’s unclear how long it’ll take before the EPA issues any decision. Gaines pointed to a similar petition sent last fall by several environmental groups calling for the EPA to take over a statewide program to control pollution in surface waters, reasoning that the TCEQ wasn’t properly reviewing permits and their potential effects. She said the federal agency is still reviewing that petition.

Wendi Hammond, an attorney from Legal Aid of Northwest Texas representing West Dallas 1, said she hopes the wait isn’t as long.

“In the petition, we pointed out to EPA that they are required to respond in a reasonable timeframe; but what is considered ‘reasonable’ is variable,” Hammond said. “We don’t know exactly how long it’ll be before the EPA takes up this issue, but hopefully it’s sooner rather than later because the community has waited long enough.”

Issues with the state process have led to more local groups putting pressure on city officials to address air quality concerns. Petitioning from West Dallas 1 recently led to two batch plants operating illegally in their area being ordered by the city to shut down.

The Dallas City Council in May approved changing zoning rules to require all concrete batch plants to receive approval for a specific use permit from the council and city planning commission in order to operate legally.

Both processes have public hearings before the groups vote on an operator’s application.

Previously, properties zoned by Dallas for industrial manufacturing allowed permanent batch plants not to have a specific use permit, which avoids a public hearing process. Plants looking to run temporarily also weren’t required to get a permit.

The city is also considering other regulations such as a zoning code change requiring minimum distances that plants can operate from homes, schools, parks and other public spaces.