Missouri's Department of Natural Resources called claims it violated residents' civil rights "unsubstantiated and conclusory" even as it quietly addressed several findings from an ongoing Environmental Protection Agency investigation.
The EPA has been investigating whether DNR, Missouri's environmental regulator, violated residents' civil rights when it issued an air pollution control permit for a fuel transport business located near several predominantly Black neighborhoods in South St. Louis.
So far, the investigation has resulted in a broad preliminary finding that DNR lacks several required components of a nondiscrimination program. Regulations gave DNR 50 days to either agree and work toward compliance or rebut the claims.
DNR responded in a letter in May calling for that preliminary finding, issued by the EPA's External Civil Rights Compliance Office, and the larger investigation to be dismissed.
The Missouri Independent asked for a copy of the state's response in June under the Missouri Sunshine Law. The letter was not turned over until this week.
"The department did not, has not, and will not discriminate or retaliate against any individual or community of any protected class for any reason," the department's late director, Carol Comer, wrote. "The department will continue to comply with federal requirements by means other than those recommended by ECRCO."
In an email, DNR's communications director, Connie Patterson, said it's the department's policy to "not comment on pending legal matters."
At issue is a permit DNR granted to Kinder Morgan Transmix to operate a facility that separates fuel products back into usable gasoline and other products after shipping.
The facility isn't new, but the way the permit renewal was issued drew the attention of Great Rivers Environmental Law Center, a St. Louis-based environmental law firm.
The firm said during the permit process DNR had failed to follow federal regulations and asked it to study the disparate impacts air pollutants have on heavily minority communities.
Great Rivers filed the complaint under Title VI, which prohibits discrimination by agencies receiving funds from EPA, on behalf of several St. Louis organizations, including the local NAACP.
In a statement, Sarah Rubenstein, a staff attorney for Great Rivers, said the group was "discouraged that DNR appears unwilling to admit that its programs have failed for many years to comply with EPA's Title VI regulations and guidance."
"It is notable that DNR's response presents no evidence that its air permitting program adequately involves the regulated public; that its permitting decisions adequately consider cumulative impacts on those low-income, minority residents that have been forced to shoulder an undue pollution burden; or that its Kinder Morgan permitting decision discriminated against the Dutchtown community."
DNR has only been notified of findings in one part of the investigation. The preliminary finding outlined what ECRCO saw as general failures. An EPA spokesperson said the agency has been in discussion with DNR about "potential next steps" since issuing that finding in March.
"The issue of whether MoDNR discriminated on the basis of race, color or national origin in its actions concerning the Kinder Morgan permit remains under investigation," the spokesperson said.
Preliminary findings and response
EPA's preliminary finding outlined several shortcomings it saw in DNR's protection for residents. It said DNR lacked a proper notice of discrimination, stating to the public the agency doesn't discriminate, and a nondiscrimination coordinator, a staff member in charge of overseeing the issue for the department.
In both cases, DNR pushed back against the agency's findings, but made changes to comply anyway, which Rubenstein said was "certainly telling."
"In some cases, the cited fact that ECRCO relies upon for its finding of noncompliance is so trivial that ECRCO wholly discounts an otherwise functioning and compliant policy," Comer wrote. "For example, the nondiscrimination notice is alleged as insufficient because the prohibition against retaliation is not explicitly presented in that document, even though that prohibition is explicitly stated in the staff policy prohibiting retaliation."
The agency claimed ECRCO had shifted the burden to the department to prove its compliance.
"ECRCO's preliminary findings are, at best, unsupported allegations," DNR wrote.
At the same time, the agency updated its notice of nondiscrimination to state it does not retaliate against complainants, and it updated its website to provide direct contact to the nondiscrimination coordinator, also the department's HR manager.
ECRCO also found DNR's grievance procedures inadequate because they don't describe the elements of the investigation process or include retaliation as a basis upon which residents can complain. It says they're also not accessible to those with limited English proficiency.
Further investigation
What remains unresolved is whether DNR discriminated against Dutchtown residents specifically in issuing the Kinder Morgan permit.
The permit sets out legal limits on emissions and state and federal regulations. It requires the facility to track emissions and self-report if it exceeds allowed standards. Emissions governed by the permit include volatile organic compounds, hazardous air pollutants, particulate matter, sulfur oxides, nitrogen oxides and carbon monoxide.
More than half the residents in the surrounding community, known as Dutchtown, are Black, and 10 percent are Latino. The area is disproportionately affected by potential hazardous pollution. The EPA's environmental justice mapping tool shows Dutchtown is well above average in terms of its risk for respiratory hazards and hazardous waste.
A city report shows parts of Dutchtown, including the ZIP code where Kinder Morgan is located, have among the highest rates of asthma in the city.
In its complaint, Great Rivers said DNR issued 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 firm remains confident EPA's preliminary findings and ongoing investigation "confirms the weight of the evidence supports our complaint."
"We remain hopeful," she said, "that EPA will compel DNR to do a better job involving the regulated public in its decision-making processes and bring the agency into compliance with the requirements of Title VI."
The Missouri Independent is a nonprofit, nonpartisan news organization covering state government and its impact on Missourians.