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.