Deborah Wilkerson was weeding the garden in her backyard when she started to choke. She felt her throat close and her lungs begin to seize as she scrambled inside her home to wash down a drink of water, hoping that would help. But the fluid wouldn't go down. Gasping for air, in short, painful breaths, Wilkerson looked at herself in a mirror and saw her eyes bulging out of their sockets.
A lean, athletic woman, Wilkerson had suffered similar attacks before, and was convinced it was all her neighbor's fault. A concrete company called Titan Gunite had moved in next door, where tall piles of sand dotted the otherwise vacant lot. Whenever the wind blew or the giant industrial trucks loaded or unloaded the sand, the fine grains would sail over onto Wilkerson's property. And over time, says Wilkerson, a self-proclaimed "outdoors nut," the sand took its toll, particularly on her eyes and lungs.
Coughing violently, Wilkerson felt dizzy and fell to her knees. She crawled out to her driveway and climbed inside her car. Somehow, Wilkerson says, she was able to make it to her doctor. She collapsed as she entered the waiting room.
When Wilkerson came to, the doctor said he had given her a shot to loosen her airways. Then he told her she could no longer live in her home. She needed to pack up and move.
Wilkerson was heartbroken.
Nearly 20 years earlier, she and her husband had bought an acre of land in north Houston in the Acres Homes subdivision. It was nothing but woods, so every weekend they chopped down trees and cleared the area so they could build their dream home. Wilkerson designed the house, complete with a front porch, a Japanese fish pond, a vegetable patch, flowers and a gazebo. Then she and her husband constructed it from scratch, hammering every nail and painting every wall themselves.
For nearly two decades, Wilkerson raised her children and enjoyed her yard. Gardening, barbecues, weekday naps in the gazebo; her kids nicknamed the home "Heaven."
But "Heaven" would not last.
In either late 2007 or early 2008, Wilkerson doesn't exactly remember, her neighbor's house burned to the ground. When the smoke cleared, all that was left was a vacant lot and a new owner, Titan Gunite.
At first, Wilkerson didn't know what her new neighbors were going to do, as she watched trucks stack piles of sand all across the adjoining property. She soon learned that the company made gunite, a type of concrete specifically used to build swimming pools. The sand was a key ingredient.
It was annoying for sure, says Wilkerson. Not only were sand and dust clouds swirling onto her land, but the noisy trucks would show up before 8 a.m. and would not stop until late at night. But for the first month or so she kept her complaints to herself. After all, Wilkerson understood, this was Houston, and with virtually no zoning laws to speak of, residents live under the constant knowledge that a strip club, a convenience store or even an industrial facility can just move in next door and set up shop.
Over time, however, Wilkerson claims, she began to suffer. The sand blew into her hair, cutting her head. Sand was coating her skin, causing abrasions and rashes, Wilkerson says, and it was getting in her eyes and lungs, causing Wilkerson to lose vision and struggle to breathe.
Finally, in August 2008, Wilkerson filed a complaint with the City of Houston. It would be the first of more than 60 complaints Wilkerson would file over the next two years with different city, county and state agencies.
Inspectors visited the site numerous times. Often, they found no violations, stating that they did not witness any sand blowing over onto Wilkerson's property. However, some investigators did find fault with Titan's operations.
Titan opened its doors without first obtaining a permit from the Texas Commission on Environmental Quality. Following this discovery, investigators noted that Titan was not covering its piles of sand to prevent it from blowing away, and that the sand piles were less than 300 feet from the nearest residence, a violation of the Texas health and safety code.
Despite this realization, and the growing number of Wilkerson's complaints, Titan Gunite continued business as usual. The TCEQ issued notices of violation and notices of enforcement, even levying a fine in excess of $6,000, but they appeared to have no effect, as Titan kept operating.
As a last resort, Wilkerson hired an attorney and took Titan Gunite to court, where she won an injunction against the company to cease its operations until it complied with the distance limit and other regulations. Still, Titan would not close its doors, openly violating the court order.
"I've done all the right things and been through all the right steps," says Wilkerson, "but nothing seems to get them to stop. There are rules in place, but the key word is 'enforcement,' and there is none of that anywhere. I am sick, the TCEQ and the City of Houston and a district court judge know that Titan is not operating within the rules, but no one can seem to stop them. And the scariest part is that this could happen to anyone here in Houston."
Air-quality experts agree.
"There are so many mom-and-pop industrial facilities throughout Houston that there's just too many to count," says Cecilia Dykes, Outreach Director for Air Alliance Houston, a nonprofit environmental advocacy organization. "You can buy land and just do whatever you want. And in general, there is no recourse except to move or to go through a lot of pain and fight it."
When Wilkerson began investigating Titan Gunite, she didn't find much. The small outfit was owned by a woman named Tish Lugo and her husband, Thien Nguyen, who claimed to have been in the industry for about ten years. Wilkerson could not find any permits filed with either the city or the state, so her first move during the summer of 2008 was to get the City of Houston involved. She began filing complaints.
The city's pollution control inspectors made a total of ten visits to the property and on many occasions noted that the business was operating without authorization, that the sand piles were left uncovered and that the piles were within 300 feet of the neighbors. The city issued notices of violation to Titan Gunite for nuisance and for failing to comply with the TCEQ regulations, said Arturo Blanco, head of the Houston Bureau of Pollution Control and Prevention. He said that the city does not issue permits for businesses to operate, and that the Houston Department of Health and Human Services does not have the authority to stop a facility from operating.
In the end, "given the permitting nature of the problems," said Blanco, the city referred the continuing violations to the TCEQ.
Other city agencies, such as the Houston Police Department's Neighborhood Protection Corps, and HPD's Environmental Investigative Unit, also got involved, but charges were never filed.
"We found no city ordinance violations," says HPD Assistant Chief Mark Curran. "Remember, Houston has no zoning."
To Wilkerson, going through the City of Houston had been a waste of time, and it appeared to her as though the city was content to simply punt the case.
With matters now in the TCEQ's hands, Wilkerson was hopeful that state regulators would find the company at fault and do something to stop it. Instead, she found herself embroiled in a seemingly never-ending series of site-investigations, bureaucratic procedures and second chances allowing Titan to try to comply with the rules.
In September 2008, TCEQ investigators reported that Titan Gunite was in fact operating without a permit, and told the company it needed to apply for authorization, which included proper dust control and meeting the 300-foot safety regulation. In turn, Titan Gunite submitted the proper forms, stating that it was 350 feet from the nearest property line. The TCEQ granted Titan a permit.
Still, the facility had to abide by the dust-control and safe-distance rules.It did not. Wilkerson claims she would wake up in the morning to the sound of heavy trucks moving giant piles of sand around, causing large clouds of dust to kick up, and could easily tell that it was all happening within 300 feet of her. The tarps to cover the piles, she says, were seldom if ever used.
Property owner and Titan Gunite principal Tish Lugo did not respond to requests for comment.
TCEQ investigators made numerous visits to the Titan facility during 2009, and nearly every time, they reported that the company was not complying with the 300-foot rule. The agency issued the company one Notice of Violation, two Notices of Enforcement and a $6,120 penalty. Each time, the agency also gave Titan Gunite another chance to get in compliance. And each time, Titan said it would do so, submitting plans on how it was going to relocate the sand farther from the neighbors.
Through all of 2009, the TCEQ was under the belief that Titan could meet the distance requirement. Investigators took measurements, and they seemed to think it could be done. The problem, however, was that no one was including Wilkerson's gazebo, her favorite spot in the backyard. Then, in February 2010, a TCEQ inspector measured not only from Wilkerson's house, but also from her gazebo, to determine if it were even possible for Titan to meet the distance rule. The answer was no.
"There is nowhere on the Titan Gunite property where...sandpiles can be placed and be both 300 feet from the gazebo ... and 300 feet from the house," the inspector wrote. He then stated that Titan was not authorized to operate and must obtain a new permit to continue.
The TCEQ admits there were some problems determining whether Titan was capable of meeting the distance limit.
"There have been some discrepancies," said TCEQ spokesman Jason Harris. He said that when the measurements were made in 2009, the agency was not aware that there was a structure in Wilkerson's backyard.
"It's surrounded by trees and not easy to see," said Harris. "We had to be informed that it was there."
It had taken about a year and a half, but Wilkerson finally established what she says she knew all along — that the proximity of the neighboring properties simply prohibited Titan Gunite from ever meeting the 300-foot rule. Wilkerson was expecting the TCEQ to shut her neighbor down.
As she would learn, however, that's not how the agency works.
TCEQ commissioners issued a default order against Titan Gunite in August 2010 requiring the company to apply for a permit. This new type of permit would impose certain specific requirements, but most likely do away with the 300-foot rule, said Harris, making it possible for the company to remain at its location.
Wilkerson was outraged.
"All the violations and enforcement orders don't mean a thing," she said. "They do no good at all. It's just useless paperwork."
Harris said he understands Wilkerson's frustrations, but that the agency must follow its procedures.
"There's a big jump between operating out of compliance with conditions of a permit and shutdown," he said. "There are many, numerous steps between these two processes."
Former TCEQ commissioner Larry Soward puts it more bluntly, saying, "The agency doesn't have the authority to tell an existing business they have to move. What the commission can do is refuse to renew a permit, but that is something the agency has never done and under the current culture is not likely to ever do. Once a business gets going, it's almost like they have a perpetual right to be there, and the TCEQ is not going to do anything about it really. Going to court is about the only way that something will ever really happen."
Which is exactly why Wilkerson decided to sue Titan Gunite in Harris County District Court.
During the trial, the two neighbors argued their case, but in the end Judge Mike Miller sided with Wilkerson. In March, he issued a temporary injunction prohibiting Titan from loading or keeping sand piles within 300 feet of Wilkerson's property, from keeping sand piles uncovered and from operating before 8 a.m. or after 7 p.m.
Once again, Wilkerson thought she had won. But her feelings of joy lasted only two days, when she says she peered outside to see the trucks next door humming away, kicking up plumes of sand and dust, same as they'd been doing since the beginning.
"Even though Titan wasn't allowed, by court order, to operate, still no one does anything to make them stop working next door," said Wilkerson. "You can have all the orders and pieces of paper in the world, but there is no enforcement anywhere. So they just keep on going, like nothing ever happened."
Frustrated and angry that state regulators and court orders seemed impotent, Wilkerson reached out to the nonprofit advocacy group Air Alliance Houston, and befriended Outreach Director Cecilia Dykes.
To show Wilkerson that she was not alone, Dykes took Wilkerson on a tour of Houston, pointing out many of the mom-and-pop industrial sites potentially causing harm to neighboring residents.
"It's bad out there," said Wilkerson. "I never knew there was so much injustice."
Nearly every morning for the past 31 years, Martha DeLeon has awakened to the sight of filthy window-blinds. Not just filthy, but coated in thick, black, sticky gunk, which DeLeon believes comes from the foundry located a block down the street from her home in the Near Northside Village community, two miles northeast of downtown. The dark soot, with glints of metal, is too dense to simply wipe away. DeLeon must use a wet rag and scrub her blinds clean.
Day in and day out, it gets exhausting. DeLeon is worried that if her blinds look this way, imagine what her lungs and insides look like after all these years.
"You may not have problems after living here for one year," she says, "but what about the people living here for 10, 20, 30 years, like me? It may be a real danger."
DeLeon had breast cancer seven years ago and says she was diagnosed with kidney cancer in 2009.
"I need to know if any of my health problems are related to the foundry," she says.
Area residents are hell-bent on figuring out whether the soil, water and air around them have been contaminated, and whether the company, Dee Foundries, which began making bronze and aluminum castings in 1934, has to pay to clean up. The Environmental Protection Agency is involved, says Dykes, and is expected to make a decision by the end of the year whether to declare the area a Superfund cleanup site.
No one knows for sure what the outcome will be, but for many of the neighborhood residents, the EPA's involvement has been a long time coming.
Complaints about the foundry began rolling in around 1998, according to a joint TCEQ-EPA report published in April. Just as in the Wilkerson case, inspectors visited the facility over and over, and did not note any environmental violations.
Air monitoring was conducted twice, says Dykes, once by the City of Houston in 2009, and again in 2010 by the TCEQ. Both tests came up empty, though Dykes claims the city did not use the correct equipment.
The soil, however, was a different matter. According to the joint report, soil sampling done around the perimeter of the foundry showed the ground was contaminated, and the TCEQ estimated that the 208 people who lived within 200 feet of the facility "may be potentially exposed to hazardous substances."
The Texas Department of State Health Services then wrote a report in September stating that soil samples taken in 2009 showed elevated levels of copper that, if ingested over the course of a year, are "high enough to potentially cause health effects in...children" ages one through six.
Dee Foundries' new owner Robert Wolf, who bought the company in January, admits that the plant used to have its share of problems. Since taking over, he says, he's installed dust collectors and dust filters in his exhaust fans, none of which had been in place.
"We have made a serious effort to clean up," he says, "inside and out. We've tried to be a friendly neighbor and we don't feel like we're doing anything wrong to harm the community."
Wolf points to the negative air monitoring tests and countless visits from investigators who did not find any violations. He says he is aware of the sticky soot that had accumulated on residents' window-blinds and cars, but performed a swab test himself and sent it to a lab. The results, he says, came back as being nearly 80 percent pollen. As for the soil sampling, Wolf says a young child would have to eat a cup of dirt a day for a year to get contaminated.
Dykes gives credit to Wolf for making improvements, but dismisses some of his claims. She says the swab test Wolf performed was not an accurate way to take a sample, and that Wolf's assertion that a kid has to eat a cup a day of dirt to get sick is only for children with pica, an eating disorder.
In fact, the Department of State Health Services report also states that preschool aged children without pica are also at risk if they consume dirt over a one-year period.
"The problem," says Dykes, "is that the health services department did not do a long-term study."
This plays right into DeLeon's worst fears.
"We're all afraid that we're going to be the lab rats," she says. "That one day scientists will look back at us as an example of what happens when you live next door to a foundry for 30 years."
Wolf readily agrees with the neighbors on a single point: His foundry should not be there.
"It's not the ideal situation for a manufacturing plant," he says, "but with the zoning laws, it is where it is. My dream would be to move the plant, but it's not easy."
In August, the TCEQ Superfund Division took additional soil and water samples. The results will likely be made public by the end of the year. They will determine whether the foundry needs to clean up the site, and what level of cleanup would be required.
"All we want is to be able to come into the neighbors' homes and let them know that their children and grandchildren can play outside and know that it is safe," says Rosalia Guerrero, who works alongside Dykes. "Right now, we can't do that. All we can say is, 'It's better to stay inside.'"
To Deborah Wilkerson, Titan Gunite seemed unstoppable. For more than a year, the company continually disregarded the TCEQ distance and dust-control regulations, and no amount of violation orders and penalties had been able to bring the business to heel. The owners were even ignoring a court order to temporarily stop working. Wilkerson was running out of options, so she decided to take her case public.
On September 15, Wilkerson showed up at a town hall meeting held at the University of Houston-Downtown. Air Alliance Houston had organized the event, and assembled an impressive panel of guests for residents to address, including the TCEQ Executive Director, Mark Vickery, and State Representative Jessica Farrar, a Democrat from Houston who is also on the Air Alliance Houston board of directors.
Wilkerson took her place amid a long line of angry and concerned Houstonians, and when it was her turn at the microphone, she set the auditorium on fire with tales of her failing health, her protracted battle with Titan and the inability of anyone to do anything tangible about it.
"I'm really angry," she told the panel. "I've done everything a person can do."
Andy Saenz, a TCEQ spokesman who was at the event, sympathized with Wilkerson.
"We all felt very sorry for her," he said, "and unfortunately this happens more often than you would think because businesses do set up next to residences, but we are not the zoning authority."
More important, however, Wilkerson's description of her ordeal made an impression on Farrar, and after the town hall meeting the state representative asked her legislative assistant, Dianne Long, to look into the matter and see if she could help, despite the fact that Wilkerson did not live in Farrar's district.
"The representative's concern," said Long, "is that no one should have to go through what [Wilkerson] has in order to get something done. We want businesses here, but we want businesses that are not going to negatively affect the health of our citizens. This has got to stop."
Long made phone calls to the TCEQ and the City of Houston, trying to resolve Wilkerson's issue. She learned that the TCEQ was planning to forward the Titan Gunite case to the Attorney General's Office for enforcement purposes, but the AG says that has not yet happened. As for the district court injunction, when asked if there was any way Wilkerson could enforce the court order and physically make Titan stop, Debbie Bucko, Civil Bureau Director for the Harris County District Clerk's Office, said, "Not that we're aware of."
The bureaucratic process steamrolled straight ahead, and once again, Wilkerson found herself helpless as the company next door continued to operate.
Her last chance was to go back to court and try to persuade Judge Miller to hold Titan's owners in contempt for violating the initial injunction.
Wilkerson and her attorney showed up early for court on the morning of October 11. Titan's owners, Tish Lugo and Thien Nguyen, were also on time. Their lawyer was late.
"You better hope your lawyer shows up," Miller told Nguyen, who at one point was sitting alone in the back of the courtroom, "because we are going to have a hearing today to see whether you're in contempt and if I need to put you in jail."
Everyone seemed on edge.
"I guess we'll see if the buck finally stops," said Wilkerson. "I'm so nervous. I really hate this."
When Titan's attorney finally did show up, more than an hour late, the hearing began.
Wilkerson took the stand and testified that since the injunction was ordered in March, she'd kept a journal, which listed 24 instances when she claimed to have seen Titan violating the order, either by leaving stockpiles of sand uncovered or operating before the allowable hours.
Then it was Nguyen's turn, and it quickly became clear that he was not going to put up much of a fight.
He told Judge Miller that he had been working continuously since the injunction and that his last gunite job had been three days prior to that day's court hearing. He also said that his sand piles had occasionally been left uncovered and that his trucks had been operating before the permissible 8 a.m. When asked how often Titan had opened up shop before 8 a.m. since the injunction was issued, Nguyen said it had happened at least 30 times.
In closing, he said that his company had run out of money and was shutting down, regardless of the judge's decision, but that he hoped to start up again once he got his finances together. Nguyen said he had tried to create an area far enough away from his neighbors to store his sand piles, but had been unable to do so.
Calling Nguyen's efforts "feeble," Miller issued a permanent injunction against Titan Gunite.
"There will be no more gunite company," Miller said. "Not now, not next summer, not during any hours. You're done. You're not going to be operating a gunite company there."
Wilkerson was stunned. It took a full minute or more for her lips to finally form a smile.
"I feel bad for the Titan folks," said Wilkerson, "because they're people, too. But you can't do what they've been doing. And now finally they have to stop, or else go to jail. I feel like I'm walking on air, like I can go home now for the first time in what feels like forever."
But it's not all smiles, for even as Wilkerson finally reaches her goal of getting Titan to close its doors, she is afraid her health may be permanently damaged.
"Have you ever been so scared?" she said, sitting on her porch and looking out over the Titan Gunite property. "I now have to deal with what's happened, my eyes, my lungs, maybe something worse. Because even when they're gone, I'm still here, left to deal with the damage that's been done. My God, have you ever been so scared?"
Get the This Week's Top Stories Newsletter
- Federal Judge Vacates Tom Brady's 4 Game Suspension For Deflate-Gate
Sat., Sep. 5, 12:00pm
Sat., Sep. 5, 2:30pm
Sat., Sep. 5, 6:00pm
Sat., Sep. 5, 7:00pm
- Is it Legal For Border Patrol Agents to Shoot and Kill Unarmed Mexican Kids—So Long as...
- Sam Houston State Student Arrested On 4-Year-Old Charge After Stupid Tweet About...