The Missouri Department of Natural Resources cited allegations of violating local residents’ civil rights as “unfounded and inconsistent” despite tacitly addressing multiple findings from an ongoing Environmental Protection Agency investigation.
The EPA is investigating whether DNR, the Missouri environmental agency, violated residents’ civil rights when it issued an air pollution permit for a fuel carrier near several mostly black neighborhoods in South St. Louis.
So far, the investigation has led to the general preliminary finding that the DNR lacks several required components of an anti-discrimination program. The regulations gave DNR 50 days to either agree and work towards compliance or to refute the claims.
DNR responded in a letter in May calling for the EPA’s External Civil Rights Compliance Office’s preliminary determination and closing the wider investigation.
The Missouri Independent requested a copy of the state’s response under the Missouri Sunshine Law in June. The letter was turned over just this week.
“The department does not, has and will not discriminate or retaliate against any protected class individual or community for any reason,” wrote the department’s late director Carol Comer. “The ministry will continue to meet federal requirements in ways other than those recommended by ECRCO.”
In an email, Connie Patterson, director of communications for DNR, said it was the department’s policy “not to comment on pending legal matters”.
It is a DNR permit that Kinder Morgan Transmix was granted to operate a facility that separates fuel products into usable gasoline and other products after shipping.
The facility isn’t new, but the manner in which the license renewal was issued caught the attention of the Great Rivers Environmental Law Center, a St. Louis-based environmental law firm.
The company said during the permit process that DNR had failed to follow federal regulations and asked it to investigate the different effects air pollutants have on communities with large minorities.
Great Rivers filed the Title VI complaint on behalf of several St. Louis organizations, including the local NAACP, which prohibits discrimination by agencies receiving funds from the EPA.
In a statement, Sarah Rubenstein, an associate attorney with Great Rivers, said the group was “discouraged that DNR appears to be unwilling to admit that its programs have failed to meet EPA Title VI rules and guidelines for many years.”
“It is noteworthy that DNR’s response provides no evidence that its air permit program is adequately involved with the regulated public; that its permitting decisions take due account of the cumulative effects on these low-income minority residents who have been forced to bear an undue pollution burden; his Kinder Morgan approval decision discriminated against the Dutchtown community. “
DNR were only given results in part of the investigation. The preliminary result outlined what ECRCO considered to be common errors. An EPO spokesman said the agency had spoken to DNR about “possible next steps” since the finding was published in March.
“The question of whether the MoDNR has discriminated against in its actions regarding the Kinder Morgan permit on the basis of race, skin color or national origin is still under investigation,” said the spokesman.
Preliminary results and response
The EPA’s preliminary finding outlined several shortcomings it saw in DNR’s protection of residents. The DNR lacked a proper notice of discrimination, telling the public that the agency was not discriminating, and lacking a non-discrimination coordinator, a member of staff responsible for overseeing the issue for the department.
In both cases, DNR denied the agency’s findings but made changes anyway to adhere to what Rubenstein said it was “certainly meaningful”.
“In some cases, the quoted fact on which ECRCO relies to determine non-compliance is so trivial that ECRCO is completely opposed to an otherwise functioning and legally compliant policy,” wrote Comer. “For example, it is alleged that the non-discrimination notice is inadequate because the prohibition on retaliation is not explicitly set out in this document, even though this prohibition is expressly set out in the staff policy to prohibit retaliation.”
The agency claimed that ECRCO put the burden on the department to prove compliance.
“The preliminary results from ECRCO are baseless allegations at best,” wrote DNR.
At the same time, the agency updated its non-discrimination notice to indicate that it is not taking retaliation against complainants and updated its website to put it in direct contact with the non-discrimination coordinator, also the department’s head of human resources.
ECRCO also found DNR’s complaint procedures inadequate as they neither describe the elements of the investigation process nor provide retaliatory measures as a basis for the residents’ complaint. It is said that they are inaccessible even to those with limited knowledge of English.
Further research
It remains unresolved whether DNR specifically discriminated against residents of Dutchtown in issuing the Kinder Morgan permit.
The permit sets legal limits for emissions as well as state and federal regulations. It requires the facility to track emissions and report themselves if they exceed allowable standards. The emissions that require approval include volatile organic compounds, dangerous air pollutants, fine dust, sulfur oxides, nitrogen oxides and carbon monoxide.
More than half of the residents of the surrounding community, known as Dutchtown, are black and 10% are Latinos. The area is disproportionately affected by potentially dangerous pollution. The EPA’s Environmental Justice Mapping Tool shows Dutchtown is well above average for its risk for respiratory hazards and hazardous waste.
A city report shows that parts of Dutchtown, including the zip code where Kinder Morgan is located, have some of the highest asthma rates in the city.
In its complaint, Great Rivers said DNR granted the permit despite comments from the NAACP objecting to the lack of “any meaningful opportunity to be involved in the permit decision-making process.”
Rubenstein said the company remains confident that the EPA’s preliminary findings and ongoing investigation “confirm the weight of the evidence in support of our complaint.”
“We remain confident,” she said, “that the EPA will force DNR to better involve the regulated public in their decision-making and bring the agency into compliance with Title VI requirements.”
The Missouri Independent is a nonprofit, non-partisan news organization dedicated to researching state government and its impact on Missouri residents.
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