On December 22, 2008, more than a billion gallons of highly toxic coal ash burst from an impoundment and spilled into the Emory River channel in Kingston, Tennessee, covering approximately 300 acres. A by-product of coal-fired power plants, coal ash contains pollutants such as arsenic, mercury, and lead, and its particles can travel deep into lungs. More than 10 years after the Kingston spill, workers who cleaned up the coal ash at the Kingston site are still suffering the after-effects of exposure, including brain cancer, lung cancer, and leukemia, and are pressing their claims in court. (See Joel K. Borune, Coal’s Other Dark Side: Toxic Ash that Can Poison Water and People, National Geographic (Feb. 29, 2019)) The impacts of this spill, however, stretch far beyond the town and those involved in the cleanup efforts, affecting the lives of hundreds of people across state lines in Uniontown, Alabama, a low-income, predominantly African American community. Ultimately, the fate of this coal ash would demonstrate the failure of environmental and civil rights laws to protect vulnerable communities.
In 2010, with the approval of the Alabama Department of Environmental Management (ADEM), the Tennessee Valley Authority transported 4 million cubic yards of coal ash from the Kingston spill to Arrowhead Landfill in Uniontown, Alabama. The Kingston cleanup took place under the regulatory authority of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), otherwise known as the nation’s superfund law. Under CERCLA, the coal ash was considered hazardous in Tennessee, but once the ash was transported to Uniontown, it was classified as nonhazardous under the Resource Conservation Recovery Act (RCRA). In 2016, Esther Calhoun, a resident of Uniontown and president of Black Belt Citizens Fighting for Health and Justice, a community-based group organized in 2005, stated in written testimony submitted to the U.S. Commission on Civil Rights:
I’ve asked over and over . . . why this coal ash was considered hazardous when it left Kingston, Tennessee, and the area of the spill was declared a superfund site, but then was no longer considered hazardous when it arrived in our community, a predominantly black town? We saw pictures of people in hazmat suits loading the coal ash in Kingston, while in Uniontown, workers were provided with little protection and community members with nothing. Workers at the Arrowhead Landfill washed the train cars after unloading, but there was no system for washing the cars of the workers as they came in and out of the site, spreading coal ash across the town. I understand that the laws are different, that the spill falls under the superfund law while the coal ash becomes solid waste and falls under the Resource Conservation and Recovery Act (RCRA) when it arrives at the Landfill. But coal ash is still coal ash—it still contains exactly the same toxic chemicals whatever name you give it.
For purposes of this article, we will assume that none of the decision-makers involved in approving the disposal of coal ash in Uniontown intentionally discriminated on the basis of race. We leave to another time a broader discussion of the role of unconscious or implicit bias
in decision-making. (See, e.g., Kirwan Institute for the Study of Race & Ethnicity, Ohio State University, State of the Science: Implicit Bias Review (2017), ) But isn’t the failure of decision-makers to protect the people of Uniontown—and, generally, the broader set of policies that lead to the disproportionate exposure of people of color to pollution from landfills and other toxic sources—a denial of equal protection, which civil rights laws were designed to address?
In 1963, events in the county seat of Marion, Alabama, just 20 miles away from Uniontown, would lead to the historic march from Selma to Montgomery to demand voting rights for African American citizens. The march would ultimately lead to the passage of the Voting Rights Act of 1965. Now, more than 60 years later and only minutes down the county road, residents in Uniontown continue to struggle to have their equal rights to clean air and clean water recognized.
Approximately 90 percent of Uniontown’s population of approximately 2,300 are African American, and with a per capita income of less than $10,000. More than 40 percent of the population live under the poverty line. When ADEM was reviewing plans to permit Arrowhead Landfill, residents formed coalitions and signed petitions to oppose the facility, knowing that it would bring pollution to their community. In 2007, however, Perry County Commissioners approved the permit anyway. Then in 2010, the County Commission, ADEM, and the U.S. Environmental Protection Agency (EPA) all approved the decision to send coal ash from Kingston, Tennessee, to Uniontown. Notably, in 2016, the U.S. Commission on Civil Rights wrote a scathing report highlighting the EPA’s failure to protect Uniontown by either implementing principles of environmental justice or by enforcing civil rights. (See U.S. Commission on Civil Rights, Environmental Justice: Examining the Environmental Protection Agency’s Compliance and Enforcement of Title VI and Executive Order 12,898 62-69 (September 2016))
Esther Calhoun and Black Belt Citizens have continued raising concerns about coal ash and other community health hazards. “If you come to Uniontown, [Alabama] you’ll see this mountain of coal ash,” Calhoun told staff at the nonprofit Earthjustice. “You would see that no one should live this close to coal ash. No one in their right mind would want to live this close to coal ash.” (See Coal Ash Dump in Alabama's Black Belt: Another Symbol of Racism's Staying Power.)
Despite the continued objection of residents, the community still bears the burden of the landfill, which is licensed to received waste from communities in 33 states—including the entire Eastern seaboard. Moreover, despite the community’s outcry against the impacts of coal ash on their health and way of life, Arrowhead Landfill continues to advertise to power plants for more coal ash and waste such as contaminated soils, debris, asbestos, and petroleum contaminants. On its website, the current owner of the landfill touts its suitability for the “efficient and environmentally responsible disposal solution” for handling coal ash, adding that characteristics of the site allow “customers to mitigate risks and limit liability.” (See Responsibly Handling Coal Combustion Residue (CCR), Other Special Waste)
Unfortunately, coal ash is not the only health hazard and environmental injustice that Black Belt Citizens is fighting. Uniontown has an antiquated sewage system with open-air spray fields that have been the subject of a Clean Water Act enforcement action that has languished in state court for years. In addition, Harvest Select operates a catfish processing plant that sends large volumes of wastewater to the faulty sewage system. The catfish plant, along with the Southeastern Cheese Corporation’s facilities, periodically emits odors that interfere with the enjoyment of property and raise concerns about the health and welfare of community residents.
Uniontown residents are also being forced to defend the memory of their ancestors as Arrowhead Landfill encroaches on New Hope Church Cemetery. The cemetery is located adjacent to the landfill and is the final resting place of former plantation workers, sharecroppers, and people who were enslaved. While the cemetery’s boundaries and deed are in controversy, actions taken by landfill operators have physically altered the site and raised questions about the integrity of burial plots for ancestors and loved ones, including Esther Calhoun’s brother and other family members, as well as the loved ones of other Uniontown residents. In the face of such glaring injustices, why haven’t laws provided protection for the residents of Uniontown?
The Promise and Failure of
Civil Rights Enforcement
Since Arrowhead Landfill first opened in 2007, Uniontown residents have filed multiple complaints with ADEM and testified at public hearings. Then, in 2013, 35 residents living within one mile of the landfill and other interested persons submitted a complaint to the EPA’s Office of Civil Rights (OCR) alleging that ADEM’s decision to reissue and modify the operating permit for Arrowhead Landfill violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and agency regulations, 40 C.F.R. Part 7. The complaint described several health and nonhealth impacts, including interference with sleep, frequent emission of odors, irritation of nose, throat, and eyes, dizziness, nausea, an increase in the vector population in and around homes close to the landfills, and increased noise from the operation of heavy machinery.
Between 2013 and 2018, the complainants continued to submit additional letters, photographs, and documentary evidence of these impacts. In addition, in 2016 the complainants filed a second complaint with the EPA asking it to address ADEM’s failure to protect them from retaliation and intimidation. After having exercised their civil rights to raise concerns about the landfill’s impacts, Arrowhead Landfill filed a $30 million lawsuit against residents in an attempt to silence them. Although the landfill eventually withdrew the suit, it was yet another way to target and threaten the community.
Despite all of this evidence and additional interviews, site visits, inspection reports, and studies submitted by complainants, the Office of Civil Rights, now named EPA’s External Civil Rights Compliance Office (ECRCO), dismissed the complaint in March 2018, declaring that there was “insufficient evidence” to conclude that ADEM violated Title VI and the EPA’s nondiscrimination regulations. In evaluating the sufficiency of evidence, ECRCO focused largely on whether Arrowhead Landfill was in compliance with federal air and water quality monitoring regulations and had capped the coal ash according to requirements. In evaluating the impact of the landfill on air quality, the EPA relied on data from an air monitor miles away from town, which had little relevance to whether community members experience problems with air pollution at fenceline. Moreover, the EPA declined to conduct testing or monitoring itself, and refused even to consider impacts on property value, asserting instead that it has “substantial discretion to determine the types of harms, on a case by case basis, that warrant investigatory resources.” The EPA provided no further explanation for its decision that “it would not investigate substantively the alleged harm of diminution of property values.” Ultimately, the EPA’s decision to close the case was based on inappropriate reliance on standards developed in accordance with environmental laws and a failure to fully investigate or recognize the full range of harms to the community caused by ADEM’s decision to permit the landfill.
Title VI of the 1964 Civil Rights Act prohibits recipients of federal funds from discriminating on the basis of color, race, or national origin. 42 U.S.C. § 2000d. Under the EPA’s interpreting regulations—and the regulations of every other federal agency that promulgated Title VI regulations—even if a specific policy, practice, or project is facially neutral, it cannot have unjustified disparate impacts. 40 C.F.R. § 7.35 (b), (c). In the environmental justice context, Title VI should be a powerful legal framework to address disparities in siting, operations, and environmental enforcement by public and private recipients of federal funding.
Like other agencies that disburse federal funds, the EPA is in charge of ensuring that recipients of federal funds, whether public or private, are accountable for complying with Title VI. Under federal regulations, the EPA has authority to conduct affirmative compliance reviews, though it rarely if ever initiates investigations. 40 C.F.R. §§ 7.110 (preaward compliance), 7115 (postaward compliance). The EPA receives and investigates Title VI complaints, overseeing whether states, cities, and businesses that receive federal funds are fulfilling their civil rights obligations. After a complaint is filed, the EPA has 20 days to determine whether it merits an investigation and 180 days to issue a preliminary finding. If the EPA makes a finding of discrimination, it must request that the recipient of funds address the problem voluntarily. If the recipient refuses to come into compliance with the law, the EPA can refuse to continue providing federal funds.
While affected residents used to be able to file a Title VI complaint in court and therefore demand judicial relief for the adverse impacts they faced, the Supreme Court held in 2001 that there was no private right of action under disparate impact regulations. Thus, in Alexander v. Sandoval, 532 U.S. 275 (2001), the Court closed the doors to private litigants seeking relief based on evidence of disparate impact, forcing communities to rely on federal agency enforcement of challenges to decisions that further exacerbated disparities and placed disproportionate environmental burdens on communities of color.
The promise of civil rights suggested by civil rights law provided no relief for residents of Uniontown. Indeed, other communities of color in Alabama have brought civil rights complaints to challenge discriminatory permitting practices at ADEM, including ADEM’s refusal to monitor its civil rights compliance by evaluating whether its actions have a disparate impact, to no avail. As far back as 2003, OCR cautioned ADEM that its “failure to adequately consider socio-economic impacts (including race) at any point in the siting and permitting process for municipal solid waste landfills in Alabama” created a “significant potential” for failing to comply with Title VI. See Letter from Karen D. Higginbotham, Dir., EPA OCR, to Luke Cole, Ctr. on Race, Poverty & the Env’t, and Cal. Rural Legal Assistance Found., & James W. Warr, Dir, ADEM, at 7 (July 1, 2003) (filed in EPA File No. 28R-99-R4) (emphasis in original). OCR stated, “[t]his potential failure of consideration could lead, in the future, to ADEM-permitted landfills that have an adverse disparate impact on a population protected by EPA’s Part 7 regulations.”
The Ashurst Bar/Smith community in Tallassee, Alabama, filed complaints against ADEM in 2003 and 2017 for reissuing permits in the heart of a historic African American community that was settled by newly freed enslaved persons after the Civil War. In 2016, residents of Dothan, Alabama, also filed a Title VI complaint after the city approved the expansion of a sanitary landfill that the community claimed would also adversely affect African American residents. ECRCO dismissed both of these complaints, despite making the factual finding in the Tallassee case that ADEM’s failure to monitor and properly inspect the Stone’s Throw had harmful impacts on the predominantly African American Ashurst Bar/Smith community.
A 2015 investigation by the Center for Public Integrity published under the title “Environmental Racism Persists, and the EPA Is One Reason Why”, found that ECRCO has routinely failed to enforce Title VI. In over two decades and after hundreds of complaints, the office did not make a single formal finding of discrimination before the Obama administration came into office. Since then, the office has only twice issued formal findings of discrimination—and both of those were controversial. First, in 2011, the EPA issued a preliminary finding of discrimination in Angelita C., a case challenging the California Department of Pesticides Regulation’s reauthorization of methyl bromide and other fumigants, which complainants alleged disproportionately harmed Latin school children. Complainants nonetheless challenged the compliance agreement the EPA reached with the state in court on the grounds that the EPA had failed to engage complainants in the resolution process and that the agreement failed to bring the regulation of fumigants into compliance with Title VI. See Garcia v. McCarthy, 3:13-cv-03939 (Complaint, N.D.CA, filed Aug. 23, 2013), but see Garcia v. McCarthy, (N.D.CA, Jan. 16, 2014) (dismissing case); aff’d, 649 Fed. Appx. 589 (9th Cir. 2016) (unpublished opinion). Then, in 2017, in response to litigation challenging the EPA’s failure to comply with regulatory deadlines for processing Title VI complaints, ECRCO issued findings of discrimination in the Genessee Power case, which had been languishing at the EPA since the 1990s, finding that African Americans were treated less favorably than other groups during permit hearings of a power plant from 1992 through 1994. In 2018, a federal court ruled that the EPA violated the law by waiting a decade or more to investigate the Genessee Power complaint as well as four other civil rights complaints submitted by Californian’s for Renewable Energy (CARE), Ashurst Bar/Smith Community Organization, Citizens for Radioactive Dumping, Sierra Club, and one individual, Michael Boyd (CARE v. EPA, Case C 15-3292 SBA, U.S. District Court for the Northern District of California Oakland Division). To provide a point of comparison, according to the U.S. Department of Education, the Office for Civil Rights and Education handled nearly 5,500 Title VI-related complaints and opened more than 55 investigations between 2009 and 2011.
The Gaps in Environmental Law
Uniontown is one of many communities across the nation where environmental hazards disproportionately burden vulnerable communities and environmental law has also afforded insufficient protection. Environmental laws such as the Clean Air Act (CAA), the Clean Water Act (CWA), and the Toxic Substances Control Act (TSCA) have reduced exposure to toxins and pollution since they were passed by Congress in the 1970s. As the EPA’s website suggests, Americans “breathe less pollution and face lower risks of premature death and other serious health effects” as a result of the CAA, for example. The benefits of these landmark environmental laws, however, do not reach all communities equally. Studies have shown that race, more than income or any other factor, is the strongest predictor of a community’s proximity to a polluting facility and, subsequently, to its exposure to toxic substances. Uniontown is a clear example of this inequity.
Ironically, in cases of environmental justice, the EPA has used federal environmental regulations to deflect claims that state and regional permitting decisions and polluting facilities are having adverse and discriminatory effects. In response to a 1998 Title VI complaint challenging a decision by the state of Michigan to approve a proposal by Select Steel Corporation to build a steel mini-mill in Flint, Michigan, a community already overburdened by polluting facilities, the EPA claimed that despite the fact that the facility was admittedly going to emit dangerous pollutants such as lead, which creates risk at any level of exposure, the EPA could not find cognizable impacts from the facility if the permit complied with environmental regulations. (Select Steel Corp., Permit No. 579-97, Docket No. PSD 98-21, 9 (Env’l Appeals Board, Sept. 11, 1998).) Notably, all facilities will claim that they plan to comply with environmental regulations when seeking a permit, and facilities found in violation of a permit offer plans to come into compliance. The EPA argued, however, that since standards are set at a level that protects human health, the levels of pollution that would be released from the steel mill would be safe.
The precedent set by Select Steel took the form of a “rebuttable presumption,” suggesting that adverse health impacts could not be considered as long as a facility was in compliance with environmental regulations. In 2010, however, the EPA issued a Civil Rights Compliance Toolkit that eliminated the “rebuttable presumption” from its analysis. The toolkit states that compliance with environmental laws “does not necessarily mean” that a recipient’s policy or practice is not causing adverse health effects. The agency is now required to determine “site specific” levels of pollution and their impacts on health. In the Uniontown case, however, ECRCO nonetheless dismissed residents’ clear evidence of suffering, finding instead that Arrowhead Landfill was in compliance with its permit and, therefore, that there was insufficient evidence that the facility was causing health impacts. Despite the EPA’s stated intention to stop applying the rebuttable presumption, ECRCO seemed to use the same logic to dismiss residents’ claims in Uniontown.
Environmental laws like the CWA, CAA, and TSCA can only protect people if they are enforced—and enforced equally in low-income communities and communities of color. Neither the EPA, ADEM, nor the city of Uniontown have expressed an interest in testing the air, soil, or water in Uniontown despite obvious pollution from a number of sources. ECRCO stated that Arrowhead Landfill is in compliance with its permit, but failed to perform its own assessment to validate the landfill’s self-reporting. Without any action by the local, state, or federal government, Uniontown residents continue to worry about exposure to numerous polluting sources, with cumulative and unjust impacts on their health and welfare.
A Way Forward
Despite the lack of success with formally pursuing justice and real change through civil rights and environmental law, the efforts of Uniontown residents and Black Belt Citizens has not been in vain. Their voices continue to raise national awareness about environmental justice issues in their state and are building momentum for reform. Black Belt Citizens partners with various organizations, including Black Warrior Riverkeeper, universities, and nonprofits to document community health outcomes and work toward civil rights enforcement. In addition, their current vice president, Ben Eaton, has become a Perry County commissioner and will provide oversight for the landfill in that role. Nonetheless, the situation in Uniontown urgently needs attention at local, state, and federal levels. Uniontown residents deserve better.
The federal government’s commitment to civil rights enforcement is at best in contention in the year 2019. On the other hand, though still inadequate, the Civil Rights Act has deeply established protections against discrimination in voting, housing, employment, education, and transportation. In the area of environmental decision-making, however, civil rights enforcement not only lags behind but still seems beyond the public imagination. Critics believe ECRCO does not have adequate resources, has been unwilling to enforce civil rights law as an independent source of duty from environmental law, is reactive to complaints rather than proactive in identifying issues, and has failed to set precedent for addressing discrimination in the environmental context.
In the short term, all states, including Alabama, need to develop and enforce environmental justice and civil rights policies. ADEM has the power to protect community members in Uniontown, Dothan, and Tallassee from injustice but has neglected to do so and repeatedly dismissed the testimony of residents who are suffering. The EPA should also exercise its affirmative authority to enforce civil rights and issue clear programmatic guidance to recipients of federal funds and comprehensive and uniform standards for investigating complaints. The latter will also serve communities by providing clarity on what evidence they can collect to protect themselves from environmental health concerns.
But those steps will not be enough. In the long term, it will also be important for Congress and the federal government to take action. The Environmental Justice Act of 2017, first introduced on October 24, 2017 as S. 1996, by Senator Corey Booker and Congressman Ruiz in the House would, if passed, overrule Alexander v. Sandoval by allowing private parties to bring actions against recipients of federal funds that are engaging in discriminatory practices rather than relying on the federal government to act on their behalf. The bill would also amend the CWA and the CAA to require consideration of the cumulative impacts of pollutants in permitting. More ambitiously, Congress and the next administration should consider a wholesale revamping of the civil rights enforcement system to create greater accountability and standardization across all agencies, including, for example, a strengthened coordination role for the Department of Justice. These solutions would centralize authority and responsibility to build capacity for civil rights enforcement and reduce reliance on dispersed agencies that also allocate resources for other goals.
As our political leaders grapple with how to protect civil and environmental justice rights, longtime Uniontown residents like Dorothy McCampbell continue to struggle with the impacts on her communities from the surrounding polluting sources. During a recent visit by the authors, McCampbell explained that she just wanted her grandchildren to enjoy their visits to her home when they were in town and to look back fondly on their time spent there. Instead, they refer to Uniontown as “stinky town” and both she and her husband deal with the daily health impacts of sore throats and asthma, which only developed after the landfill opened down the road from her house.
“I’d like to see the EPA do justice,” Esther Calhoun commented in her testimony before the U.S. Commission on Civil Rights. “I’d like our voices to be heard.”