Residents of Ohio town see ‘environmental justice’ as empty promise

Introduction

EAST LIVERPOOL, Ohio – When President Bill Clinton deemed environmental justice an administration priority 21 years ago, Alonzo Spencer felt an odd sensation: optimism.

The steel-mill crane operator could stand on the grounds of the neighborhood elementary school and see why such protections mattered. Down a valley less than 400 yards from the East Elementary School, hugging the banks of the Ohio River, a hazardous waste incinerator belched smoke, fumes and flares into the air.

Spencer and a core of fellow activists had fought what was then the Waste Technology Industries incinerator ever since it was proposed it in the early 1980s.

They were still fighting when it opened in 1993. So Spencer was heartened a year later when Clinton decreed that each federal agency “shall make achieving environmental justice part of its mission by identifying and addressing …disproportionately high and adverse human health or environmental effects” on minority and low-income communities.

More than 10 years later, the U.S. Environmental Protection Agency designated a neighborhood near the incinerator a “potential environmental justice area.”

People here took this as a sign that someone would come to their rescue. No one has. Now, many see Clinton’s Executive Order 12898 and the EPA’s environmental-justice designation as little more than an empty promise.

“We fit the designation as an environmental justice community and all that it entails,” said Spencer, president of a group called Save Our County. “But there are conditions that went along with that, and they’ve never been implemented… [We are] still being poisoned by the emissions from the facility, and we’re still suffering.”

An EPA official told the Center for Public Integrity that the environmental justice label doesn’t require the agency to take special action in communities such as East Liverpool. It merely serves as an internal screening tool to help officials identify potentially vulnerable areas.

“I think a lot of times what people are looking for is something that’s just not there,” said Matthew Tejada, enforcement director in the EPA’s Office of Environmental Justice. “I think a lot of times, folks wish that we had an actual [environmental justice] statute on the books that would say ‘If X happens, you do Y,’… and we don’t have that.”

The East Liverpool example shows the hollowness of the government’s environmental-justice pledge, said Stephen Lester, science director for the nonprofit Center for Health, Environment and Justice. Spencer serves on the CHEJ board.

“They haven’t received any kind of attention from the agency as a result of that [designation],” Lester said of East Liverpool residents. “The EPA at the time went through that elaborate process. It’s nice they did that, but what did the agency do when it comes to that conclusion? And that’s the question we’ve been asking.”

Save Our County members reached out to the EPA’s widely criticized Office of Civil Rights about a year ago, Spencer said. “We couldn’t get anyone that would help us within the organization,” he said. “The contacts we had wouldn’t answer our phone calls or our letters or our emails.”

In a statement, the EPA said it could neither “confirm nor deny” Spencer’s claim. “We can confirm that, as of today, [the Office of Civil Rights] does not have any pending matter involving East Liverpool, Ohio.”

“We couldn’t get anyone that would help us within the [EPA]. The contacts we had wouldn’t answer our phone calls or our letters or our emails.”

Alonzo Spencer, East Liverpool activist

An executive order, a plea for help

On October 19, 1994, nine months after Clinton issued his executive order and a year after the Waste Technology incinerator started burning hazardous waste, Spencer asked the EPA to designate East Liverpool, with its high cancer rate and dwindling population, an environmental justice community.

Though the city is majority white, residents clustered around the incinerator – now operated by Heritage Thermal Services — are mostly minority and low-income, Spencer and Terri Swearingen, coordinator of the Tri-State Environmental Council, wrote in their plea to the EPA.

It took 11 years for the EPA to agree. In March 2005, the agency said that East Liverpool qualified for environmental justice protections. Census data had shown the minority and/or low-income population in the East End neighborhood nearest the incinerator was more than twice the average of every state in the EPA’s Region 5.

For residents, the designation was encouraging. They clung to four words spelled out in a report from the Ohio Environmental Protection Agency in 2007: “Fair treatment” and “meaningful involvement.”

In truth a half-dozen activists here say they have yet to see either from the state or federal governments – even as EPA enforcement records show the incinerator is considered a significant violator of the Clean Air Act.

In 2011, the U.S. EPA fined Heritage $50,000 for violating the act. In a statement to the Center, the agency said the violations “may have caused excess emissions of hazardous air pollutants, heavy metals and soot.” An accidental release that dumped ash on homes and cars in the city’s East End neighborhood drew a $10,000 for violation of the federal Resource Conservation and Recovery Act (RCRA), which governs hazardous waste disposal, and a $34,000 fine from the Ohio EPA, both in June.

Spencer said the fines have done no good.

“We’ve written letters to [regulators] involving this facility as a perpetual violator,” he said. “They have a history of violating, and the EPA fines them, slaps them on the wrist and lets them continue to run…”

Heritage spokesman Raymond Wayne wrote in a statement that the emissions that triggered the Clean Air Act penalty “were of short duration, low severity and within the yearly allowable limit that is deemed protective of health and the environment by environmental regulators.”

He said the company “responded immediately” to the ash release and learned from the incident. “We deployed personnel to take samples of the area,” he said. “We set up a ‘1-800’ hotline to field calls from the community that was staffed until the late evening.”

U.S. EPA officials say East Liverpool’s environmental justice designation doesn’t obligate the agency to shut down the incinerator but moves the community’s concerns to the top of the agency’s to-do list.

“[I]t means that folks have more forums in which to raise their issues,” Tejada said. “They have more advocates within the agency and within the government…”

Strange smells, stark colors, melting equipment

Heritage burns hazardous waste generated by industry and government, including reactive materials, household hazardous wastes and controlled substances from the U.S. Drug Enforcement Administration (DEA) and other agencies.

Its incinerator operates in a city whose population has dipped from nearly 14,000 in 1990 to a tick over 11,000 in 2013. EPA data show more than 1,800 of 3,501, or 53 percent, of people within a one-mile radius of Heritage lived below the poverty line in 2010.

The incinerator sits in a floodplain below the town. The tops of its smokestacks are level with nearby homes, some of which are less than a mile away. Unfavorable winds often send trails of smoke over the community.

“We get downdrafts here more than usual,” said longtime resident Amanda Kiger. “The emissions that go into the air, they come right back down into the houses.”

“When the smoke comes out of that stack, it’s right above our house,” said Sandy Estell, who lives 800 feet away, on the street nearest the plant. “It’s just like an umbrella.”

Today, Ohio law requires a 2,000-foot buffer zone between industry and homes, but that rule came after approval of the East Liverpool incinerator.

Over the years, residents say, they have encountered foul odors and bright colors emanating from the plant’s stacks. Estell recalls an odor one day that reeked of cat urine.

“A purple plume has come out of that stack several times. Purple as this,” said East Liverpool resident Virgil Reynolds, pointing to the purple sweater Estell wore that afternoon.

Heritage officials attribute the bright colors to the burning of iodine in its cleaning water, which the EPA said poses no health risks.

The EPA’s Toxics Release Inventory (TRI) shows that Heritage put more than 3,000 pounds of chemicals into the air in 2013, including lead, manganese, barium and benzene. The incinerator’s total emissions, however, have decreased nearly every year since 2005.

In 2010, under pressure from Heritage critics, the East Liverpool Board of Education accepted a bid to demolish East Elementary School, which sat less than 400 yards from the facility. The board cited the city’s shrinking population and the proximity to the incinerator as factors in the closing.

In 2011, a flash fire at the incinerator killed one worker and sent another to the hospital with severe burns. The U.S. Department of Labor’s Occupational Safety and Health Administration proposed fines against Heritage totaling $126,000 for nine alleged violations in connection with the incident. One of the violations was classified as “willful,” meaning OSHA believed Heritage showed “knowing or voluntary disregard” for federal law or “plain indifference to worker safety and health.” Under a settlement, the willful violation was reclassified as “serious” and Heritage agreed to pay $63,000.

“Following any incident, regardless of the severity, we conduct a rigorous review of what happened and, based on the findings, implement appropriate corrective and preventative measures,” Wayne said.

A year later, several workers said their protective clothing began to “melt and disintegrate” while they were preparing hazardous waste for incineration. Their lawsuit against Heritage was dismissed, but such incidents serve as stark reminders of the proximity between industry and people.

In July 2013, a malfunction sent approximately 761 pounds of ash into nearby neighborhoods during routine incinerator operations, the company said. The city told residents to be sure to wash fruits and vegetables from their gardens before eating them. Spencer said the ash release was so bad that Heritage offered to pay to clean people’s cars and swimming pools.

“The whole four-block radius around the incinerator was totally covered in ash,” said Kiger, an organizer for the environmental group Communities United for Responsible Energy. “They brought in people in hazmat suits.”

The Ohio Department of Health’s Health Assessment Section found high levels of metals in soil near the incinerator. It said, however, that the trace levels in residential areas were “not expected to harm people’s health.” Lester, of the Center for Health, Environment and Justice, examined the report. The department, he said, ignored its own findings.

“The level of lead was specifically high in certain areas,” Lester said. “These were levels that settled in soil, not what people were breathing. I think people had a high dose…”

Heritage spokesman Wayne said the company made major changes after the ash incident.

“Internally, we convened an extensive incident investigation,” he said. “We identified potential waste streams that contributed to the incident and suspended a number of them.”

Heritage and Ohio EPA officials met in June and agreed on a $34,000 penalty for the ash release. Spencer called the penalty “just another slap on the wrist.”

‘Good neighbor’

Heritage says it is a good neighbor and the allegations raised by Spencer and others have been addressed.

“All of the issues that have been raised about this facility have been examined in detail,” Wayne said. “There’s absolutely no reason to revisit them again at this point. We are a well-respected member of the community, both the business community and the community in general.”

East Liverpool Mayor Jim Swoger has supported Heritage since the company began awarding grants for local environmental projects in 1998.

Swoger lived in the East End for 45 years, his wife more than 60, and says neither has seen health effects from the incinerator. Both received clean bills of health after Heritage sponsored testing of residents’ hair, fingernails and motor skills, Swoger said.

“I don’t see the effects of the incinerator, today,” he said in a phone interview. “I respect Alonzo more than anybody. The amount of work he’s done on this is amazing… But he’s 87 years old and he’s very healthy. Sandy Estell lives right near Heritage and her son, Ryan, is one of the smartest boys I’ve seen.

“If I thought Heritage was hurting us, I’d be the first to say something. They’d tell you that.”

In March, the U.S. EPA cited nearly 200 instances between 2010 and 2014 in which the incinerator had exceeded its allowable total hydrocarbon (THC) emission rate. Failed safety measures “have caused or can cause excess emissions” of hazardous metals, chemicals and particulate matter into the air, the EPA said.

Heritage spokesman Wayne said the exceedances occurred only .018 percent of the time during that period. He said the company is taking steps to ensure compliance in the future.

Supporters fear Heritage will take the fall for other polluters in the area. The waste incinerator is one of four facilities that discharge hazardous chemicals in East Liverpool and 11 within a 10-mile stretch along the Ohio River. Four of the 11 do not report to the Toxics Release Inventory.

“Bellofram [Corporation] is another industry right up the road,” said Denise Taylor, who heads the Community Resource Center of East Liverpool and used to live blocks away from Heritage. “Sammis [Coal] Plant has been here for years. Mason Color, too… It amazes me that the EPA is so concerned when there are other plants around us.

“Heritage is not the only facility and I don’t think they should be used as a scapegoat.”

EPA data show Heritage accounts for 17 percent of toxic releases in Columbiana County. Mason Color Works accounts for less than one percent. Two other facilities operated by Weavertown Environmental Group and East Liverpool WWTP have air, water and land permits and the potential to release up to 20,000 pounds each of hazardous chemicals into the air, but do not report to the Toxics Release Inventory.

Taylor said Heritage is the only organization that gives back to the community. It donated more than 100 turkeys for the Community Resource Center’s 2014 Thanksgiving Giveaway, and Heritage workers volunteered to repair a community playground that went years without maintenance..

Heritage is the reason the Resource Center is still open, Taylor said.

“They do a lot of things behind the scenes because they don’t want any credit…,” she said.

On Earth Day this year, Heritage donated more than $6,500 to school and community environmental projects. The company has given nearly $74,000 to environmental projects in the past 17 years.

“Companies do that. That’s good PR,” Kiger said. “What’s $6,000?”

Tracy Drake, a Heritage supporter, says activists overlook the positive impact the company has made on the city.

“It’s the largest taxpayer in East Liverpool, they’re a very good neighbor, and they employ more than 170 workers,” said Drake, director of the Columbiana County Port Authority. “It’s had a great effect on the economy. You shut Heritage down, all those people go unemployed.”

Wayne said the company is in the process of adding to its 180 employees at the incinerator.

“We provide opportunity for our community, not only in terms of jobs, but also in terms of taxes and voluntary contributions paid to the city and many civic organizations,” he wrote in a statement.

Still, some residents remain staunchly opposed to Heritage, and have gained no traction in their decades-long quest to shutter it.

Years ago, Spencer wrote to EPA Deputy Administrator Bob Perciasepe, noting how another hazardous waste incinerator in the state, operated by PPG Industries Ohio, faced closure unless it came into strict compliance with EPA emissions standards.

In the letter, he said dioxin stack releases for 2011 showed the East Liverpool incinerator’s to be 10 times that of PPG’s. At the same time, Spencer wrote, PPG was fined six times the amount Heritage was.

“We can’t understand why PPG [can face closure] based on its problems but [Heritage] can continue to operate,” said the CHEJ’s Lester.

New permits, no voice

Strikingly, residents say, the incinerator was recently granted permits to burn hazardous waste from two new sources – one, in 2010 from the DEA, and the other in 2011 from the Bureau of Alcohol, Tobacco, Firearms and Explosives – without the community receiving notice. “One of the provisions is the public would have input into any additional waste coming into this area,” Spencer said. “The public was not afforded an opportunity to comment.”

Wayne said it is up to the respective federal agencies to take public comments on new permits, not Heritage. The Center for Public Integrity filed Freedom of Information Act requests with the DEA and ATF seeking proof that they sought such comments before Heritage received the permit to burn their waste. The FOIA requests also sought information on what materials Heritage is burning.The DEA said it had “no responsive records”; the ATF did not respond.

Save Our County contacted the EPA’s Office of Civil Rights about the new waste streams, Spencer said, but was told it had to fill out lengthy paperwork to get an investigative process started.

“It just sounded like an, ‘Ah, we’re just going to drag this out forever,’ ” he said. “And we’ve been through that before.”

Spencer wrote to then-U.S. Attorney General Eric Holder, calling on the government to honor the environmental-justice designation it bestowed on the community in 2005. “We feel that the issuance of these permits are a clear violation of two provisions of ‘environmental justice’ policy as set forth by the U.S. EPA,” Spencer wrote in October 2013, “to wit ‘FAIR TREATMENT’ and ‘MEANINGFUL INVOLVEMENT.’”

Over the years, citizen protests have included a mock funeral for hazardous waste at the governor’s mansion and sit-ins at the capitol with children. There were demonstrations at the White House and plant headquarters. Spencer said he was handcuffed with actor Martin Sheen after one demonstration, when both were arrested in 1991 after climbing a construction site fence and kneeling in protest at the under-construction incinerator.

Spencer, 87, says he may not see the end of his hometown’s fight for clean air, but he has faith in the next generation of activists.

“We’re not going to give up, period,” he said. “Our group is passing away. We’re passing the torch to the younger group. Some of them are mothers who see those illnesses in their children.”

Spencer hopes their appeals for help, unlike his, are heard.

“All of our fears have come to fruition,” he said. “This is a perfect example of a government agency failing a community.”