Laurie Harper, director of education for the Bug-O-Nay-Ge-Shig School, a K-12 tribal school on the Leech Lake Band Indian Reservation in north-central Minnesota, never thought that a class of chemicals called per- and polyfluoroalkyl substances, or PFAS, would be an issue for her community. That’s partly because, up until a few months ago, she didn’t even know what PFAS were. “We’re in the middle of the Chippewa National Forest,” she said. “It’s definitely not something I had really clearly considered dealing with out here.” 

Late last year, tests conducted by the Environmental Protection Agency revealed that her school’s drinking water wells were contaminated with PFAS. Some of the wells had PFAS levels as high as 160 parts per trillion — 40 times higher than the 4 part-per-trillion threshold the federal government recently proposed as a maximum safe limit. 

PFAS, also known as forever chemicals, are a global problem. The chemicals are in millions of products people use on a regular basis, including pizza boxes, seltzer cans, and contact lenses. They’re also a key ingredient in firefighting foams that have been sprayed into the environment at fire stations and military bases for decades. Over time, these persistent chemicals have migrated into drinking water supplies around the globe and, consequently, into people, where they have been shown to weaken immune systems and contribute to long-term illnesses like diabetes, cardiovascular disease, and cancer. 

After the EPA’s tests came back, Harper, who oversees education for the whole Leech Lake Band of Ojibwe, realized that some 300 students and faculty members at the Bug-O-Nay-Ge-Shig School had been consuming PFAS-tainted water for an indeterminate amount of time, perhaps since the school’s founding in 1975. Now, the chemicals are all Harper thinks about, and their presence in the school’s water supply is a constant reminder of a problem with no obvious solution. 

“We can’t not provide education,” Harper said. “So how do we deal with this?” Months after discovering the contamination, she’s still looking for answers. 

Beyond immediate concerns about how to get students clean water, the situation at the Bug-O-Nay-Ge-Shig School raises larger questions for Indigenous nations across the United States: Is Bug-O-Nay-Ge-Shig the only tribal school with PFAS contamination in its water? And how pervasive are PFAS on tribal lands in general? But data on PFAS contamination on tribal lands is patchy at best. In many parts of the country, there’s no data at all. 

“There is very little testing going on in Indian Country to determine the extent of contamination from PFAS to drinking water systems, or even surface waters,” said Elaine Hale Wilson, project manager for the National Tribal Water Council, a tribal advocacy group housed at Northern Arizona University. “At this point, it’s still difficult to gauge the extent of the problem.” 

PFAS have been around since the middle of the 20th century, but they’ve only been recognized as a serious health problem in the past decade or so after a lawyer sued DuPont, one of the top U.S. manufacturers of PFAS, for poisoning rural communities in West Virginia. Since then, a growing body of research has shed light on the scope of the PFAS contamination problem in the United States — nearly half the nation’s water supply is laced with the chemicals — and water utilities are finally taking stock of what it will take to remediate the contamination. But for the 547 tribal nations in the U.S., there is nothing resembling a comprehensive assessment of PFAS contamination. Tribal water systems have gone largely untested because many of them are too small to meet the EPA’s PFAS testing parameters. 

“We can certainly say that PFAS is an issue for every single person in the United States and its territories, that includes tribal areas,” Kimberly Garrett, a PFAS researcher at Northeastern University whose work has highlighted the lack of PFAS testing on tribes.

The federal government has a responsibility to protect the welfare of all Americans, but it has a legal obligation to tribes. In the 18th century, the government entered into some 400 treaties with Indigenous nations. Tribes reserved specific homelands, or were forcibly moved to places designated by the government, and guaranteed rights like fishing and hunting, as well as peace and protection. Experts say that responsibility to tribes includes protection from contaminants. 

“Every treaty that assigns land to tribes impliedly guarantees that land as a homeland for the tribes,” said Matthew Fletcher, a law professor at the University of Michigan and a member of the Grand Traverse Band of Ottawa and Chippewa Indians. “Contaminated land is a breach of that treaty land guarantee.”

If PFAS are as widespread on tribal lands as they are in the rest of the U.S., many reservations likely have a public health emergency on their hands. They just don’t know it yet.

In some ways, Bug-O-Nay-Ge-Shig, known as the Bug School, got lucky. In December last year, the Environmental Protection Agency, armed with funding supplied by the Bipartisan Infrastructure Law passed by Congress in 2021, approached Leech Lake leaders to ask if the tribe would like to have its water tested for PFAS. The agency had $2 billion to help small or disadvantaged communities test their water supplies for emerging contaminants. The Bug School qualified as both. 

When the tests came back positive, the school immediately started shipping in 5-gallon jugs of drinking water and the cafeteria started using bottled water to prepare meals. The school even paused a community gardening program meant to teach students about the value of fresh foods out of fear that the soil was contaminated. 

The school knew that it had a contamination problem on its hands, but believed that the problem would be temporary — the measures it put in place were Band-Aids until a long-term solution was found. Months into the crisis, however, school administrators have yet to figure out a permanent fix. The school still doesn’t know where the contamination is coming from, and the cost of cleaning the chemicals out of its water supply threatens to be prohibitively expensive. 

PFAS remediation requires equipment, frequent testing, and dedicated personnel who have the capacity to monitor forever chemicals for years. Paying for PFAS cleanup is a tall order in large, affluent communities with the resources to address toxic contaminants. The mid-sized city of Stuar, Florida, discovered PFAS in its water supply in 2016 and, to date, has spent more than $20 million fixing the problem. The PFAS in their water still aren’t entirely gone. 

On reservations, figuring out who’s responsible for testing for PFAS and paying for remediation is an impossible puzzle to crack, mainly because no one seems to know where the buck stops. 

Federal PFAS testing has largely bypassed tribal public water systems. That’s because tribal systems are smaller, on average, than non-tribal public water systems. Every five years, the EPA tests the nation’s drinking water for “unregulated contaminants” — chemicals and viruses that are not regulated by the agency but pose a potential health threat to the public. The EPA finally included PFAS in its testing for unregulated contaminants in 2012, alongside a list of metals, hormones, and viruses. But it mainly tested systems that serve more than 10,000 people. 

A study conducted by Northeastern University found that just 28 percent of the population served by tribal public water systems was covered by that round of PFAS testing, compared to 79 percent of the population served by non-tribal water systems. There were also no PFAS results for approximately 18 percent of the tribal water systems tested by the EPA “due to missing data or lack of sampling for PFAS,” the study said. To make matters more complicated, many Indigenous communities get their water from private wells, which are not monitored by the EPA. A recent study suggests a quarter of rural drinking water, much of which comes from private wells, is contaminated by PFAS. 

Data on PFAS in tribal areas, experts emphasized over and over again, is extremely scarce. “We don’t know if PFAS is disproportionately affecting tribal areas,” Garrett said. “We won’t know that until we get more data.” 

What limited data exists is outdated. The Environmental Working Group, an advocacy organization that tracks PFAS contamination across the U.S., conducted a rough, preliminary PFAS estimate on tribal lands in 2021 using what data there was available at the time. It showed that there are nearly 3,000 PFAS contamination sites, like garbage dumps, within five-miles of tribal lands. The analysis is almost certainly an underestimate.  

The lack of PFAS testing on tribal lands is compounded by the fact that there is no one entity responsible for testing and treating tribal water systems for PFAS. That’s partly due to the fact that PFAS are a relatively new issue, but it also has a lot to do with the lack of centralized monitoring of tribal health in general. For example, American Indian and Alaska Native communities experienced some of the highest COVID-19 infection rates in the United States in 2020. But the siloed nature of tribal, local, state, and federal data collection systems means that no one has a real sense of just how many Indigenous people died in the pandemic, even years after the crisis began. 

If history is any indication, Fletcher, the law professor, said, remediating these contaminants will be a game of push and pull between the federal government and tribes. In previous efforts to rid reservations of arsenic and lead contamination, he said, “usually the fights are the tribe insisting that the government do something and the government doing everything it can to avoid any kind of liability or obligation.” 

In the 1990s, Rebecca Jim, a Cherokee activist and former teacher who was instrumental in raising awareness about lead poisoning among children in Ottawa County, Oklahoma, had to navigate a complicated patchwork of tribal governments, federal bureaus, and treaties to finally get the government to clean up the Tar Creek Superfund site on the Quapaw Nation — one of the agencies largest Superfunds. It took a decade for Jim and other activists to pressure the EPA into cleaning lead — the legacy of mining for materials used in bullets — out of Ottawa County, and she maintains that the EPA only started paying attention to what was happening in Tar Creek after a local masters student discovered that approximately one-third of children in a town in the county called Picher had lead poisoning. 

“There’s always a fight,” Jim said. “It’s all about money and where you’re going to get the money to do the work.” 

Jim said that testing for contaminants on tribal lands is generally the responsibility of the Indian Health Service, an agency housed within the National Institutes of Health, or falls to a given tribes’ own environmental protection office. But it becomes the EPA’s problem once the agency designates an area as a Superfund site, like Tar Creek was. Then, the EPA tries to go after the polluters responsible for the mess in the first place. If the agency is successful, Jim explained, there is generally ample funding for cleanup efforts. If a polluter can’t be pinned, it falls on the EPA to fund the cleanup, which is a more laborious and less thorough process because there’s fewer dollars to go around. And if the contamination occurs at a federally-controlled tribal school, like the Bug School, the Bureau of Indian Education is responsible. It’s a veritable maze of jurisdiction — even finding where you are in the maze is a tall order. 

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Laurie Harper’s efforts to untangle the bureaucratic knot that governs decision-making and testing for contaminants at the Bug School may serve as a lesson to other tribal schools that discover PFAS contamination in their water supplies. In February, two months after the EPA approached the school to offer PFAS testing, the results came back. The agency called the school immediately and said it needed to shut down its water system, an urgent request that caught administrators off guard. “We were still like, what? OK, how long is this going to last? Do we open the water? What do we do with it?” Harper said. 

In March, desperate for answers, Harper traveled to Washington, D.C., and met with the director of the Bureau of Indian Education, or BIE, Tony Dearman, who heard her concerns about finding a long-term solution for the school.

What she didn’t find out until later, however, was that the BIE had already conducted its own testing at the Bug School in November 2022, during what Harper and other school administrators had assumed was just the agency’s annual compliance check. “They were already aware that the Bug-O-Nay-Ge-Shig school had tested high for PFAS,” Harper said. “They didn’t tell the school administration nor did they tell the tribe. They didn’t even tell the EPA.” 

Unbeknownst to her, the BIE had sent a very short email to the school months earlier, in February, telling them that the bureau had found levels of two types of PFAS — PFOA and PFOS — in the school’s water. When Harper finally tracked down that letter and read it, she was appalled by how vague the language was. 

“We have received the PFAS (specifically, Perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)) results from the November 2, 2022 sampling event,” it read. “There were several exceedances of PFOA at Wells 1, 2, 3 and 4 and PFOS detection at Well 3 all were above the State limit for and EPA Health Advisory for PFOA and PFOS, please see attached spreadsheet.” The letter did not define what PFAS were or how dangerous they can be to human health. And it certainly did not make it clear to Bug School administrators that the school was in the midst of a public health crisis. “I’m an educator, not a hydrologist,” Dan McKeon, the school’s superintendent and the primary recipient of the letter. “There was notice of results that exceeded some standards, but no guidance about what that meant or what we should do.” 

The BIE concluded the letter by telling the school that it would be conducting a second round of PFAS testing within 30 days to “confirm the analytical results” of its initial tests and then determine next steps, but the bureau didn’t return for testing until April 2023 — more than five months after the initial test, and weeks after Harper’s meeting with director Dearman. BIE, she was told by the bureau’s own leadership, was putting out fires on multiple fronts. “You’re not the only school that’s testing high for PFAS,” she recalls BIE’s supervisory environmental specialist telling her. 

In a written response to questions from Grist, a spokesperson for the BIE said the bureau is “committed to providing schools with safe drinking water” that meets federal standards and that it is in the process of collecting water samples from BIE-owned public water systems at 69 schools. The bureau did not respond to questions from Grist about how many tribal schools exceed the EPA’s newly proposed 4-part-per-trillion PFAS limit. 

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In the past few years, Harper told Grist that two people who worked at the Bug School have died from cancer. Multiple female employees have thyroid issues. Harper knows that these diagnoses could be linked to hereditary, behavioral, or environmental exposures. But the deaths — the most recent, a man who died from testicular cancer just a year ago — have made solving the school’s PFAS situation feel even more urgent. Harper has been meeting with EPA, BIE, BIA, and state agencies to get the problem solved. “I’m so frustrated with how bureaucracy works,” she said. But she’s in the fight for the long haul, whatever it takes. “It’s the long-term solutions we’re interested in, not just the quick fix.”  

Harper isn’t working in a vacuum; 2023 has been a breakthrough year for PFAS awareness and remediation nationwide. Earlier this summer, major manufacturers of PFAS, including Dupont and 3M, agreed to multi-billion-dollar settlements with cities and states across the country — the largest PFAS settlements thus far. At the end of July, the Fond du Lac Band of Lake Superior Chippewa, a tribe located about 115 miles southeast of the Bug School, filed a companion lawsuit, tied to those earlier settlements, against 3M for the cost of gathering data on PFAS, treating its drinking water supplies, fisheries, and soil for contamination, and monitoring the health of the tribe. 

The Minnesota Pollution Control Agency, a state agency that monitors environmental quality, has conducted a preliminary investigation into the PFAS contamination at the Bug School after school administrators alerted the agency to the problem, but that probe didn’t reveal what the source was. The agency said it will conduct another, “in-depth investigation involving soil and groundwater sampling” at the Bug school in the fall. 

Also at the state level in Minnesota, a bill introduced in the legislature this year would permit Minnesotans who are exposed to toxic chemicals to sue the companies responsible for producing the chemicals and force those companies to pay for the cost of screening for conditions that are caused by exposure. 3M has fought these kinds of laws as they’ve cropped up in state legislatures because a legal right to seek medical monitoring will likely lead to a situation in which the company will have to pay billions of dollars’ worth of medical bills. But Harper is sure she can drum up support for the legislation. “I know I can convince other tribes to get behind a law that would allow medical monitoring in the state of Minnesota,” she said. “This is our land. These are our children. These are our families.” 

This story was originally published by Grist with the headline What one school’s fight to eliminate PFAS says about Indian Country’s forever chemical problem on Aug 14, 2023.

This story was originally published by Inside Climate News and is reproduced here as part of the Climate Desk collaboration.

On a rugged stretch of the Gulf Coast in Texas, environmental groups called foul in 2020 when an oil company sought pollution permits to expand its export terminal beside Lavaca Bay. 

Led by a coalition of local shrimpers and oystermen, the groups produced an analysis alleging that the company, Max Midstream, underrepresented expected emissions in order to avoid a more rigorous permitting process and stricter pollution control requirements. 

In its response, Max Midstream did not respond to those allegations. Instead, it cited what it characterized as the “quintessential one-mile test” by Texas’ environmental regulator, the Texas Commission on Environmental Quality, to claim that the groups and citizens involved had no right to bring forth a challenge because they lived more than one mile from the Seahawk Oil Terminal. 

“The well-established Commission precedent has been repeated again and again,” the lawyers wrote. “Based on the quintessential one-mile test relied upon by the Commission for decades, none of the Hearing Requests can be granted.”

The TCEQ agreed, rejecting all hearing requests and issuing the permit as initially proposed. 

But the agency says the one-mile test cited by the company’s lawyers doesn’t exist.

“The Commission has never adopted a one-mile policy,” said TCEQ spokesperson Laura Lopez. “Instead, the Commission applies all factors set out in statute and rules.”

Indeed, the test is not codified in Texas law or TCEQ rules. Yet it appears consistently in TCEQ opinions going back at least 13 years as a means to restrict public challenges to air pollution permits. It has been cited repeatedly by industry lawyers and denounced by environmental advocates.

“This practice is arbitrary and unlawful,” said Erin Gaines, an Austin-based senior attorney with the nonprofit Earthjustice. “TCEQ’s practices prevent people from having a meaningful voice in the permitting process for polluting facilities in their community.” 

U.S. law requires that states provide citizens with the opportunity to challenge pollution permits in federal court. The rules regarding who may bring forth challenges are laid out in Article III of the U.S. Constitution, which doesn’t say anything about a distance limit. 

Dozens of Texas environmental groups have argued in petitions, now before the U.S. Environmental Protection Agency, that TCEQ unlawfully restricts access to judicial review, including through the one-mile rule, and litigants in the Max Midstream case have now challenged the use of the one-mile rule in federal court and are awaiting a hearing set for this fall. 

The TCEQ, which is responsible for implementing federal pollution laws in Texas, issued its blanket denial that the rule exists despite a list of more than 15 cases compiled by Inside Climate News that centered on the one-mile standard. In some, it was explicitly cited by TCEQ itself, or by industry lawyers. In others, the one-mile standard is depicted on maps produced by the TCEQ. In each case, the distance standard is the main or the only justification offered for granting or denying citizens’ hearing requests.

Last year the nonprofit Earthjustice reviewed 460 requests for air permit hearings between 2016 and 2021. It found that while requests from citizens living within one mile of a facility comprised 12 percent of the requests, they comprised 83 percent of the requests the agency granted; almost all of the remaining 17 percent of granted requests came from people who lived only slightly farther than one mile away.  

“TCEQ’s actions speak for themselves,” Gaines said. “TCEQ routinely denies hearing requests from members of the public unless they own property within one mile of a facility.”

The one-mile standard 

Texans who wish to challenge TCEQ permit decisions must file a request with the agency. Its executive director reviews those requests and recommends whether or not the agency’s three commissioners, all appointed by the Republican governor of Texas, should grant them. 

To do that, the executive director assesses whether the challengers qualify as “affected persons” with legal standing to bring forth complaints. Texas’ administrative code considers an “affected person” anyone who will be “affected by the application” in a way that is not “common to members of the general public.”

When formulating recommendations, the TCEQ’s Lopez said, the executive director “considers many factors, only one of which relates to the location of the facility.”

However, a review of the agency’s recommendations shows that the distance standard is regularly the only factor used to recommend rejection of hearing requests.

It appears in writing as far back as 2010, when 36 people challenged a permit renewal for a gas processing plant in northeast Texas, mostly complaining about odorous hydrogen sulfide gas coming from the facility’s flares. 

“The Executive Director has generally determined that hearing requestors who reside greater than one mile from the facility are not likely to be impacted differently than any other member of the general public,” wrote the executive director at the time, Mark Vickery, who is now a lobbyist for the Texas Association of Manufacturers. “For this permit application, the Executive Director’s staff has determined that no requestors are located within one mile of the proposed facility.”

(The permit renewal in question was not eligible for a hearing anyway, Vikery wrote, because it posed no changes from its original form.)

His recommendation: none of the requestors should be recognized as affected persons. The TCEQ commissioners agreed.

“All requests for a contested case hearing are hereby DENIED,” wrote then-TCEQ Chair Bryan Shaw, who is now a lobbyist for the Texas Oil and Gas Association.  

“Rule of thumb“

By 2014, the rule was well known among lawyers for industrial developers. That year, 16 members of the Danevang Lutheran Church in rural Wharton County requested a hearing over plans to build a gas-fired power plant in their tiny town. 

In written arguments to the TCEQ, lawyers for the plant developer, Indeck Wharton, wrote, “A key factor the Commission frequently uses as guidance on the distance issue is the one-mile ‘rule of thumb.’”

“While it is not an immutable rule, the Commission frequently uses it as a guide,” the lawyers wrote. “It is not found in any statute, regulation or guidance document. Instead, it is founded in common sense and experience.”

TCEQ’s executive director at the time, Zak Covar, then invoked the one-mile limit.

“Although the church is within one mile of the proposed facility, the request does not claim that any person resides at the church,” Covar wrote before the commissioners denied the church members’ request for a hearing and issued the permit as proposed. 

In 2017, the TCEQ received 16 hearing requests — including from local residents, a Texas A&M University chemist and the Bryan Independent School District — over plans by Saint-Gobain Ceramics and Plastic Inc., to build a facility in Bryan.

“Because distance from the facility is key to the issue of whether there is a likely impact … the ED has identified an area of approximately one mile from the plant on the provided map,” wrote the executive director at the time, Richard Hyde. 

Only Jane Long Intermediate School sat within the one-mile radius. So TCEQ denied 15 hearing requests and granted the school district’s. Later, the school district withdrew its hearing request, citing a settlement agreement with Saint-Gobain, and TCEQ approved the permit application.

Two years later, when Annova LNG applied for permits to build a gas compressor and terminal on the Rio Grande delta, the nearby city of South Padre Island requested a hearing. 

“The City stated that it is located more than one mile from the proposed terminal,” wrote the executive director at the time, Toby Baker. “Given the distance of the City from the proposed terminal, the ED recommends that the Commission find that the City is not an affected person.”

The commission agreed. Hearings were denied and a permit was issued.

Also in 2019, 36 residents requested hearings over permits for a concrete plant in Midlothian. The nearest of them, Sarah Ingram, lived 1.2 miles away and expressed concern about the health of her children when protesting the pollution permit. 

“As none of the requestors reside within one mile of the plant’s emission point, they are not expected to experience any impacts different than those experienced by the general public,” Baker wrote. 

Commissioners denied all requests and granted the permit as proposed. 

In 2020, the nonprofit Lone Star Legal Aid filed a hearing request on behalf of Port Arthur resident John Beard over a developer’s plans to build an LNG export terminal. 

According to the request, Beard regularly spends time on Pleasure Island, an 18-mile long recreational area in Port Arthur that runs as close as 900 feet from the proposed terminal site, in his capacity as the chair of the Pleasure Island Advisory Board.

In evaluating the request, the TCEQ only considered Beard’s home address, four miles away. 

“Beard is not an affected person in his own right because he is located almost 4 miles from the facility,” wrote Baker, the executive director. 

Lone Star Legal Aid filed an 11-page response, claiming “sites like Port Arthur LNG require the commission to consider a larger impact area than merely a mile,” and that “there are no distance restrictions imposed by law on who may be considered an affected person.” 

TCEQ referred the question to the State Office of Administrative Hearings, where an administrative law judge agreed with Lone Star Legal Aid, writing, “the Applicant’s own data indicated that operation of the Proposed Facility will result in increased levels of [nitrogen oxides] and [fine particulate matter] at Mr. Beard’s residence.”

The administrative judge declared Beard an “affected person” and ordered a hearing over the pollution permit, which was held in February 2022. A second administrative judge also agreed with some of Lone Star Legal Aid’s complaints and recommended that the TCEQ require Port Arthur LNG to use better pollution control technology that would lower emissions of nitrogen oxides and carbon monoxide from the facility’s eight gas compressor turbines.

But the commissioners rejected most of the judges’ recommendations, calling them “economically unreasonable,” and approved the permit.  

Meanwhile, TCEQ has granted hearing requests for requestors who live within a mile. In 2015, a group called Citizens Alliance for Fairness and Progress in Corpus Christi requested a hearing over air pollution permits for a planned modification at a Citgo Refinery, and identified group members living a few blocks from the refinery. 

Five years later, the executive director recommended granting the request “because the Alliance identifies as members residents (sic) that reside within one mile of the proposed facility.” Citgo withdrew its application before a hearing was held. 

Legal complaints 

The country’s landmark environmental laws, the Clean Air and Clean Water acts, require states to provide opportunities for citizens to challenge pollution permits in court, a process known as judicial review, so a judge may evaluate if permits are consistent with federal standards. 

Texas law provides such opportunities in its health and safety code, which says: “A person affected by a ruling, order, decision, or other act of the [TCEQ]… may appeal the action by filing a petition in a district court.” 

But multiple petitions to the EPA have alleged that Texas courts will only take up pollution permit complaints if the plaintiff has already been through a “contested case hearing” in administrative courts run by the state. Thus, by denying complainants’ requests for contested case hearings, often citing the one-mile standard, the TCEQ controls their access to the courts. 

“Participation in the contested case hearing process is a prerequisite to seeking judicial review of a TCEQ permitting decision,” reads one 38-page petition filed with the EPA in 2021 by 22 Texas environmental groups, focused on TCEQ’s water pollution management. “This empowers the TCEQ full discretion to deny any person the right of judicial review.”

Where federal law is concerned, requirements for access to judicial review are laid out in Article III of the U.S. Constitution. When states are charged with enforcing federal law, they may not impose limits beyond what the Constitution says, according to Gaines, the environmental attorney with Earthjustice in Texas.

In another 61-page petition filed last year with the EPA over TCEQ’s air pollution management, 11 Texas environmental groups said the contested case hearing process is absent from the sweeping pollution management plans that Texas, like all states, must submit to the EPA for approval. 

That process, the petition says, includes “an arbitrary presumption that only those who own property or live within one mile of a proposed new or modified source are affected persons entitled to participate in a contested case hearing.”

“While not codified anywhere, this ‘rule of thumb’ is used regardless (of) how large the source is, the character of the emissions, the size of a facility’s stacks, or local meteorological conditions,” the petition said. 

For that petition, an EarthJustice analysis showed that TCEQ granted only 12 percent of hearing requests between 2016 and 2021 — virtually all of them from people who lived within a mile or just slightly further from the applicant’s location. 

Early this year, the U.S. Environmental Protection Agency responded to the 2021 petition and said it was “informally investigating the allegations.” 

“If proven to be true, the allegations outlined in the Petition are concerning,” Charles Maguire, the EPA deputy regional administrator, wrote in January.  

The EPA can revoke a state’s authority to implement federal environmental law if the state regulator does not meet program requirements, Maguire wrote, including “failure to comply with the public participation requirements.”

A spokesperson for EPA Region 6, Jennah Durant, told Inside Climate News, “Because both petitions are still under review, EPA cannot provide further details at this time.”

Durant declined requests for interviews with Region 6 administrator Earthea Nance and did not respond to questions about why only informal investigations were launched. 

“If states start to deviate too much from national expectations about good implementation enforcement, which includes access to judicial review, the EPA can disapprove of the state’s plan,” said Cary Coglianese, director of the Penn Program on Regulation at the University of Pennsylvania. “It’s not a threat that’s used often and it can’t be used lightly.”

The case of Max Midstream

Diane Wilson filed her first hearing request with the TCEQ in 1989. Since then she’s filed over a hundred more, she guesses. Only twice has she been recognized as an affected person, in 1998 and 2015. 

“You ask any activist out there, any grassroots person, and they will tell you the same thing about TCEQ,” she said. “They’re in a big love affair with industry.”

Wilson, who leads an organization called San Antonio Bay Estuarine Waterkeeper, filed a challenge with the TCEQ when Max Midstream sought its permit to discharge airborne toxins including “hazardous air pollutants” such as hydrogen sulfide, carbon monoxide, nitrogen oxides, sulfur dioxide, volatile organic compounds and fine particulate matter, all known by the EPA to cause cancer and other serious health impacts.

Her organization, together with the Environmental Integrity Project and Texas Rio Grande Legal Aid, obtained data from Max Midstream’s permit application for the Seahawk Oil Terminal, analyzed it and concluded that the company underrepresented expected emissions in order to avoid a more rigorous review process for larger pollution sources. 

That was when lawyers for Max Midstream cited the one-mile rule.

“Based on consistent Commission precedent,” the lawyers wrote. “Only a property owner with an interest within one mile or slightly farther could possibly qualify for a contested case hearing.”

“It’s crazy they say that,” said Wilson, 75, as she sat in a bayside park in Port Lavaca. She pointed across the water to the sprawling Formosa Plastics Corp. plant that stood prominently on the horizon, some seven miles away (farther than Max Midstream). “I have been here and watched releases from that plant come clear across the bay. It’s like a fog come in.”

She submitted to the TCEQ analysis from Ranajit Sahu, a private environmental consultant in California who previously managed air quality programs and has a Ph.D. from the California Institute of Technology. He testified that harmful health impacts from the terminal could extend up to five miles away. 

She also pointed to a 2009 study, led by a researcher at Texas A&M University and published in the journal Ecotoxicology, which linked clusters of genetic damage among cows in Calhoun County to industrial emissions up to 15 kilometers (9.3 miles) away. The largest cluster identified was seven kilometers (4.3 miles) from the industrial facilities.

Nevertheless, in a 2022 opinion, Baker, the TCEQ executive director, sided with Max Midstream. Although Wilson had stated that she regularly spent time near the site of the proposed facility, her home was 16 miles away in the town of Seadrift. 

Baker wrote: “Given the distance of Ms. Wilson’s residence relative to the location of the terminal, her health and safety would not be impacted in a manner different from the general public. Therefore, the ED recommends that the commission find that Diane Wilson is not an affected person.”

The director used the same reasoning to recommend rejection of hearing requests from five residents in Port Lavaca, about 4 miles across the water from the Seahawk terminal — a complex of huge storage tanks, marine loading docks and a pump station to move oil through a 100-mile pipeline. 

They included Mauricio Blanco, a 51-year-old shrimper who said he spends nine hours per day on the water close to the proposed facility, even though he lives six miles away. 

Also included: Curtis Miller, 61, owner of Miller’s Seafood, a national wholesaler of shrimp, fish and oysters started by his uncle in the 1960s, with its headquarters on the bayside in Port Lavaca. 

In official comments, he told the TCEQ he would be harmed economically by increased air emissions because carbon dioxide from the terminal will contribute to acidification of bay waters, harming the oyster population he depends on. 

Baker acknowledged Miller’s economic concerns, but concluded that “based on his location relative to the terminal, Mr. Miller’s health and safety would not be impacted in a manner different from the general public.”

Miller, a stout seaman covered in sunspots, said, “I don’t know what they base that on. I think we could be strongly affected here 4 or 5 miles away.”

From the docks at Port Lavaca, he pointed across the water at the Seahawk Terminal, the tallest feature on the horizon, looming large to the northeast. 

“Does that look far away to you?” he said.

Then he pointed at a U.S. flag that was flapping to the southwest, directly from the plant to where he stood. 

“Look which way the wind is blowing,” he said. “That’s our prevailing summer wind.”

In April 2022, the TCEQ commissioners agreed with the executive director and denied all hearing requests. 

It issued Max Midstream a permit authorizing 61 different emissions points to release up to eight different air contaminants at a collective rate of hundreds of pounds per hour.

“Emissions from this facility must not cause or contribute to ‘air pollution’ as defined in Texas Health and Safety Code,” the permit said. 

In June 2022, Wilson sued the TCEQ in federal court, alleging that it “acted arbitrarily and unreasonably in determining that Plaintiffs did not qualify as affected persons” based solely on distance. 

“There are no distance restrictions imposed by law for this type of permit,” reads a legal brief Wilson filed for the case in July 2023.  

She claimed TCEQ issued a pollution permit that was not compliant with state and federal law and asked the court to overturn it. A first hearing in the case is set for November. 

This story was originally published by Grist with the headline The one-mile rule: Texas’ unwritten and arbitrary policy protects big polluters from citizen complaints on Aug 12, 2023.

Quick Key Facts

1. When you compost your food scraps instead of sending them off to a landfill, you reduce methane emissions and create organic material in which to grow plants.
2. Composting also improves soil health; reduces erosion and the need for pesticides or fertilizers; and promotes carbon sequestration and climate resiliency.
3. Two common types of aerobic composting processes are vermicomposting, which involves worms, and hot backyard compost piles.
4. While many organic materials can be composted, not all should be composted in a residential setting because they will decay too slowly and potentially attract pests. Commercial settings will allow for more types of items to be composted.
5. Finished compost can be mixed in soil or used as mulch.
6. San Francisco was the first American city to create a food scrap composting program in 1996, but many more have since kicked off their own programs or are currently considering it.
7. If your municipality doesn’t offer composting or food scrap collection services, you can look to private haulers or community gardens.
8. Not all food scrap collection services are using the collected organic materials for compost. Instead, they may be using it to create other products, like biogas.
9. A handful of states are allowing residents to choose to have their bodies composted once they die, but some groups find the practice controversial.

What Is Composting and Why Does It Matter?

Composting is the practice of intentionally breaking down organic substances — like food scraps — and turning it into compost, essentially a nutrient-rich organic matter that is excellent for feeding plants. It also helps reduce methane emissions associated with food waste (more on that later). And according to the Natural Resources Defense Council, “compost is an essential tool for improving large-scale agricultural systems” by improving soil health, reducing erosion and conserving water.

The U.S. Environmental Protection Agency (EPA) also notes that using compost “attracts beneficial organisms to the soil and reduces the need for pesticides and fertilizers,” as well as promotes carbon sequestration and, subsequently, climate resiliency.

How Does Composting Help Mitigate Climate Change?

Climate change is occurring because of human activities that create greenhouse gases, like carbon dioxide and methane, that prevent heat from the sun from escaping from our atmosphere and entering into space (the “greenhouse effect”).

When organic waste is thrown into the trash or into a landfill, it decomposes anaerobically, or without oxygen, in a process that then creates methane. While you’ve probably heard about the climate impact of carbon dioxide emissions, methane emissions last less time in the atmosphere but have a stronger impact while there.

“Methane has more than 80 times the warming power of carbon dioxide over the first 20 years after it reaches the atmosphere,” according to the Environmental Defense Fund. “Even though [carbon dioxide] has a longer-lasting effect, methane sets the pace for warming in the near term. At least 25% of today’s global warming is driven by methane from human actions.”

But when that organic waste is instead composted, it decays aerobically (that is, in an oxygen-rich environment), and methane isn’t emitted.

What Can I Do With Finished Compost?

Finished compost can be used throughout the garden in lieu of artificial or chemical products to help feed plants. It can be mixed into soil or used as a potting mix, or otherwise spread on top of the soil in the garden bed to use as mulch, according to the Institute for Local Self-Reliance. 

What Are the Different Types of Composting?

There are three overall composting categories: hot methods, cold methods and vermicomposting. Within those categories are numerous different types of compost setups, but the most common types you’ll likely come across in the residential context are aerated, thermophilic compost piles (or backyard compost piles) and vermicomposting boxes. Several cold methods also create compost and they are slower, anaerobic processes.

As the name implies, backyard compost piles are simple enough to set up and maintain that you can do it at home. By incorporating an appropriate mix of carbon-rich and nitrogen-rich materials, as well as oxygen and water, you can build and maintain a compost pile that will produce finished compost in a matter of months. Temperatures within a backyard compost pile can reach between 130° to 160° Fahrenheit, according to the EPA which explains the backyard compost pile creation and maintenance process in full on its website.

Vermicomposting, meanwhile, involves using worms and microorganisms to break down organic matter to turn it into compost, according to the NC Cooperative Extension. The extension notes that only seven types of worms can work for composting, but California’s Department of Resources Recycling and Recovery recommends using one of two species: Eisenia foetida and Lumbricus rubellis. The process can be done inside or outside.

After consuming the organic matter, the worms will essentially poop out fertilizer in the form of worm castings. Cornell University’s Waste Management Institute recommends using old dresser drawers or fish tanks to set up at-home vermicomposting — the center also details the full process here.

How Long Until I Have Compost at Home?

Hot composting methods can produce finished compost with several weeks of maintenance, although that doesn’t account for curing time. It’s important to cure your compost, or leave it undisturbed to allow it to continue breaking down, after the first weeks of active maintenance in a backyard compost pile.

Vermicomposted organic matter, however, doesn’t require curing, according to the Institute for Local Self-Reliance, meaning you can use the finished compost right away.

Where Else Can I Compost if Not at Home?

Even if you don’t have space at home to have your own compost setup (or perhaps hosting a family of worms is unappealing to you), that doesn’t mean you can’t put your food scraps to good use.

Some community gardens may have a compost pile you can contribute to, but check with whomever is in charge of it to make sure you’re not adding too much of certain items (or the wrong things entirely). And depending on where you live, your local farmers market might offer a food scrap composting drop-off option.

Increasingly, municipalities like Arlington County, Virginia are offering their own food scrap pick-up programs to compost locally. That county began offering curbside food scrap collection in 2021, after five years of collecting only yard waste from residences. And some cities are creating pilot projects to test out such programs before committing to them long-term. Washington, DC, for example, is kicking off a curbside composting pilot this summer for 12,000 households whose waste is handled by the city’s public works department.

But such programs aren’t exactly brand-new ideas, as San Francisco became the first American city to establish a large food scrap composting program nearly 30 years ago, in 1996. (The city met several smaller waste reduction goals but failed to meet an ambitious zero-waste by 2020 goal, revising it to cutting total waste by 15% by 2030 and reducing landfill-bound waste by 50%).

If your city doesn’t offer its own food scrap collection program, research whether private food scrap haulers exist in your area. Essentially, you sign up and pay these haulers to independently collect your organic waste on a set schedule and take it to an off-site compost pile. Some may allow you to skip weeks when you haven’t collected enough scraps to make pick-up worthwhile.

Another bonus of composting away from the house? Often you can opt to receive some of the finished compost if you’re a regular subscriber or contributor, meaning you can gain the garden benefits of composting without having to do the dirty work yourself.

What Can I Compost?

Some resources say that anything that can be eaten can be composted. That may be true in general, but some things should only be composted in certain settings. Not every substance decomposes at the same rate, meaning items that are slower to break down could attract pests, according to Food Print, a GRACE Communications Foundation project that focuses on environmental concerns around the industrial food system.

The Institute for Local Self-Reliance offers a list of what should and shouldn’t be composted on their website. Yard waste, such as untreated wood chips and fall leaves, as well as cut flowers, tea bags without staples, crushed egg shells and fresh fruit and vegetable scraps can all get tossed in a backyard compost pile. But the institute doesn’t recommend trying to compost pet waste, meat, bones, dairy products, or cooked foods.

However, if you drop off your food scraps or have them picked up by a municipal compost service, that service provider can likely compost a more expansive array of items that you’re able to do at home. Arlington County, Virginia details on its food scraps collection webpage a lengthier list than most backyard composters could rely on, including meats, bones… basically anything we consume, plus things like greasy pizza boxes, soiled napkins, natural corks and even hair and fingernail clippings.”

A growing number of products claim to be compostable, but often they are only compostable in industrial or commercial settings. If you have a specific question (like whether you can compost an old slice of apple pie since it’s mostly apples, or whether take-out utensils labeled compostable actually can be), don’t overthink it. Just reach out to the agency or company running the program and ask.

Can Humans Be Composted?

The short, scientific answer to that question is yes, humans are compostable. But the question of whether you’re allowed to compost humans depends on where you live.

Currently, six states in the U.S. allow for human composting as an after-death alternative to traditional burials or cremation, according to CNBC Make It. California, Colorado, New York, Oregon, Vermont and Washington (which first set the trend in 2019) have all made it a legal option for residents. According to Legiscan, Nevada’s governor signed a law that made human composting legal in the state on May 30, 2023, making it the seventh state to do so.

A human composting legislation tracker maintained by Earth Funeral Group notes that Connecticut, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Rhode Island and Virginia have all had bills filed to legalize natural organic reduction, another term for human composting. The same tracker notes that legalization legislation has been considered but failed to pass in Hawaii and Pennsylvania.

Composting humans has several environmental benefits over more common types of end-of-life corpse care. Cremation creates roughly 400 kg of carbon dioxide per body, according to an article published by The Guardian. The newspaper further explains how traditional burials aren’t much better, with “embalming fluid seeping into the soil as the body and coffin decompose, as well as other toxins such as radiotherapy or chemotherapy drugs,” in addition to limited burial space.

Nonetheless, reporting by Illinois television station WTVO notes that some religious groups and traditional burial groups are actively against the practice, citing concerns for the dignity of the deceased.

Are Food Scrap Collection Programs Always Making Compost?

Not necessarily. Depending on where you live, your scraps might be sent off to an anaerobic digester to be processed. As noted before, an anaerobic processing of food scraps creates methane, but operators of anaerobic digesters tout that the machines contain those emissions and turn them into biogas or digestate, according to the EPA. That biogas can be used for manufacturing feedstocks, electricity, heating, vehicle fuel or renewable natural gas (which is basically processed biogas). Depending on whether it’s in liquid or solid form, digestates can be turned into “animal bedding, nutrient-rich fertilizer, a foundation material for bio-based products (e.g., bioplastics), organic-rich compost, and/or simply as soil amendment, the latter of which may include the farm spreading the digestate on the field as fertilizer.”

Food scraps aren’t the only thing that can be processed in an anaerobic digester. The agency also lists animal manure, wastewater biosolids, crop residues, fats, oils and brewery or winery waste as products that can go in such a system.

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