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Vol. 51-2 Air Quality

October 20, 2021

Air Quality

Contested Air Permit Leads to Filing of Civil Rights Complaint with EPA


In 2014, Valero Refining submitted an application to amend air permit 2501A for the Fluid Catalytic Cracking Unit (FCCU) at its Manchester (Houston) refinery.[1] The application sought to consolidate several New Source Review (NSR) authorizations pertaining to the existing emission levels’ operation.[2] The application also requested the permit reference hydrogen cyanide (HCN) existing emissions in response to pending EPA action about such emissions’ regulation under the National Emission Standards for Hazardous Air Pollutants (NESHAPS) program.[3] Following public notice issuance met with significant opposition from Hispanic groups and elected officials, public meetings were held on June 4, and September 20, 2018.[4] Based on Valero’s direct referral request, the application was transferred to the State Office of Administrative Hearings, which held a preliminary hearing to establish jurisdiction and parties and then referred the case for mediation.[5] The mediation was successful and the agreement’s terms, including significant reductions in allowable HCN emission rates, were forwarded to the Texas Commission on Environmental Quality (TCEQ) on March 15, 2021.[6] However, as discussed below, the public notice, comment, and public meetings processes during the application’s pendency led to significant criticism of the TCEQ, the complaint’s filing with the EPA under the federal Civil Rights Act of 1964 Title VI, and proposed TCEQ public-participation-rules changes.

Title VI generally

Title VI of the Civil Rights Act of 1964 provides that no program receiving federal funds, which includes the TCEQ, may discriminate against people based on their race, color, or national origin.[7] It directs individual agencies to hold hearings to determine if a program is not complying with the non-discrimination requirement.[8] If determined noncompliant, the agency advises the program of its status and may seek to bring them into compliance voluntarily.[9] If the program remains out of compliance, the agency may file a written report to the relevant House and Senate committees and then terminate the program’s funding.[10]

EPA’s Title VI Enforcement Mechanism

The EPA enforces Title VI and other civil rights laws through its External Civil Rights Compliance Office (ECRCO).[11] ECRCO does not conduct proactive compliance reviews of funded programs, but investigates complaints received from citizens or whistleblowers.[12] Title VI complaints can be submitted through an online form[13] and must identify the discriminating entity and allege the Title VI violation.[14] Complaints must be filed within 180 days of the last discriminating act.[15] The EPA’s regulations provide that the agency has 180 days to respond to a complaint.[16]

EPA’s Actual Enforcement

The EPA has historically failed to respond to most Title VI discrimination claims.[17] In 2015, five environmental groups—which included the Sierra Club of Texas—filed a complaint in a Californian U.S. District Court[18] alleging the EPA failed to respond to their Title VI complaints.[19] The court ruled in the groups’ favor at summary judgement.[20] The EPA settled with the complainants, agreeing to respond more quickly to the five groups’ Title VI complaints.[21]

In late 2019, environmental groups, including the Sierra Club of Texas, filed a Title VI complaint against the TCEQ based on the public participation process in connection with the Valero permit amendment application.[22] The complaint alleged the TCEQ had failed to offer adequate language interpretation at public meetings, which were held primarily in Spanish speaking areas.[23] ECRCO accepted the complaint, and the TCEQ, the EPA, and the environmental groups entered into settlement discussions.[24] Additionally, a petition for the adoption of rules was filed with the TCEQ, and on December 18, 2019, the TCEQ directed that a rule-making proposal be developed. On November 3, 2020, an Informal Resolution Agreement was signed by the EPA and the TCEQ. Following three stakeholder meetings in October 2020, the TCEQ approved proposed rules for publication in the Texas Register on March 10, 2021.[25]


John Turney is retired Senior Counsel of Richards Rodriguez & Skeith and represented regulated companies in a variety of environmental and administrative matters before the TCEQ and other regulatory agencies.

June Hormell is a second-year student at The University of Texas School of Law and Symposium Director for the Texas Environmental Law Journal.


[1] Tex. Comm’n on Env’t Quality, Consolidated Notice of Receipt of Application and Intent to Obtain Air Permit, Notice of Preliminary Decision, and Notice of Public Meeting, Permit Number 2501A 1 (2018),

[2] Valero Refining-Texas L.P., TCEQ New Source Review Permit Amendment Application 1-1 (2014),

[3] Id. at 1-1, 55.

[4] Keith Rushing, Isabel Segarra Trevino, & Yvette Arellano, Texas Environmental Agency Faces Charges of Federal Civil Rights Violations, EarthJustice (Nov. 12, 2019),

[5] See Valero Refining-Texas L.P., Permit No. 2501A Amendment – Addition of HCN Emission Limit Application Supplement, Final Draft Permit- Requested Revisions from SOAH Mediation 1 (2021),

[6] Id.

[7] Civil Rights Act of 1964, Pub. L. No. 88-352, § 601, 78 Stat. 241, 252–53 (codified as amended at 42 U.S.C. § 2000d).

[8] Civil Rights Act of 1964, Pub. L. No. 88-352, § 602, 78 Stat. 241, 252–53 (codified as amended at 42 U.S.C. § 2000d); 42 U.S.C. § 2000d.

[9] Id.

[10] Id.

[11] External Civil Rights Compliance Office (Title VI), Env’t Prot. Agency, (last updated Feb. 22, 2021).

[12] U.S. Env’t Prot. Agency Office of Inspector Gen., Improved EPA Oversight of Funding Recipients’ Title VI Programs Could Prevent Discrimination 10 (2020),

[13] Filing a Discrimination Complaint Against a Recipient of EPA Funds, Env’t Prot. Agency, (last updated Feb. 22, 2021).

[14] Id.

[15] Id.

[16] 40 C.F.R. § 7.115 (2020).

[17] Order Granting in Part and Denying in Part Plaintiffs’ Motion for Summary Judgment; and Denying Defendants’ Rule 12 Motion to Dismiss and Granting Alternative Motion for Summary Judgment as to the Sixth Claim For Relief at 2, 29, Californians for Renewable Energy v. Env’t Prot. Agency 4:15-cv-03292-SBA (2018) (No. 93, 98, 108); Padres Hacia Una Vida Mejor v. McCarthy, 614 F. App’x 895, 897 (9th Cir. 2015) (noting that the EPA routinely failed to meet the 180 day deadline to address a Title VI complaint and that in the plaintiff’s case the EPA did not resolve its complaint until seventeen years after it was submitted); Rosemere Neigh. Ass’n v. Env’t Prot. Agency, 581 F.3d 1169, 1175 (9th Cir. 2009); Tracy Haugen, Evaluation of the EPA Office of Civil Rights 9 (2011),

[18] Id. at 1.

[19] Id.

[20] Id.

[21] Neil Carman & Cyrus Reed, Civil Rights Complaint Leads TCEQ to Open Rulemaking On Language Access For Public Input in Environmental Permitting Decisions, Sierra Club Lone Star Chapter (Sept. 23, 2020),,Club%20in%20developing%20new%20rules.

[22] Id.

[23] Id.

[24] Id.

[25]TCEQ Seeks Input on Public Notice and Participation Requirements, Tex. Comm’n Env’t Quality, (last updated Oct. 10, 2020); see Tex. Comm’n Env’t Quality, Commission Approval for Proposed Rulemaking Rule Project No. 2020-018-039-LS  (2021),