Environmental injustice: EPA neglects discrimination claims from polluted communities

Introduction

Three years into Lisa Jackson’s tenure as head of the U.S. Environmental Protection Agency, more than a dozen formal complaints alleging air pollution is disproportionately harming low-income, minority communities remain unresolved. Each of these complaints has languished — in some instances, for more than a decade — in the EPA’s Office of Civil Rights despite Jackson’s stated commitment to environmental justice.

“We must include environmental justice principles in all of our decisions … especially with regard to children,” Jackson wrote in a January 2010 memo outlining the agency’s top priorities.

But EPA documents obtained by the Center for Public Integrity’s iWatch News and interviews with activists and residents reveal that the administrator’s words have brought little relief to underprivileged communities overburdened with pollution.

The Office of Civil Rights — whose leader reports directly to Jackson — has in its files a total of 38 unresolved complaints dating to July 1994, according to a list published on the office’s website following a Freedom of Information Act request from iWatch News. Fifteen of these OCR complaints involve air pollution.

The EPA did not explain why so many cases remain unresolved. However, a spokeswoman said in an email that “the Agency has made meaningful progress on many of the complaints that remain on its docket.”

Environmental justice advocates are dubious. “The backlog doesn’t seem greatly improved, and it’s not clear what processes they use to evaluate the complaints” said Marianne Engelman Lado, a lawyer at Earthjustice, a nonprofit environmental law firm. “Why is that progress?”

Poverty and pollution

Tammy Foster, a 39-year-old housewife turned environmental activist from Corpus Christi, Texas, has had several miscarriages in the 17 years that a complaint alleging discrimination in her community has been pending at OCR. Doctors don’t know why she’s been unable to conceive, she said. “If I had to guess, I’d say living on Refinery Row,” a 10-mile stretch of oil refineries and other industrial plants.

Foster blames emissions from the plants that border the Dona Park neighborhood on three sides for a birth defect that causes her to average four kidney infections per year and for regular outbreaks of hives and blisters. “When I’m gone, I feel great,” she said.

Dona Park, where Foster has lived most of her life, is about 70 percent Hispanic, according to the 2010 census. The U.S. Census Bureau’s most recent American Community Survey found that about a quarter of all families in the community live below the poverty line.

In Ford Heights, Ill., a solidly African-American exurb of Chicago, about 40 percent of all families are in poverty, according to the American Community Survey. In April 2006, residents filed a complaint — still unresolved by OCR — against the Illinois Environmental Protection Agency for failing to act on Geneva Energy, LLC, which bought a tire-burning power plant located only blocks from a community center that housed a preschool program.

The plant has operated intermittently due to financial and environmental problems that include a long list of air pollution violations. “The only way that you would know [it was running] is that the smoke was in the air,” said Melva Smith-Weaver, who worked at the Head Start program in Ford Heights until 2007.

”There was quite a few children during that time that were asthmatic. You would expect to have out of 102 kids, one or two that are asthmatic, but we had quite a few — maybe 15 to 20.” In 2009, the preschool program moved to new location about a mile away, but middle school students still attend classes just down the road from the plant.

“This facility is clean and safe for the surrounding community,” said Geneva Energy CEO Ben Rose. He acknowledged the air pollution violations but said “there is little evidence that plants such as ours increase asthma attacks.” Rose said it’s “outrageous that this complaint wasn’t addressed immediately” by OCR.

Ford Heights Mayor Charles Griffin agreed. In an October letter to Jackson, he noted that Geneva Energy is the city’s biggest private employer and taxpayer. “This could have been dismissed after a brief investigation, lifting the cloud of uncertainty from the facility,” Griffin wrote.

The Corpus Christi and Ford Heights complaints are among at least 15 Clean Air Act cases pending with OCR; three of these cases date to the 1990s. Twenty-three other pending complaints allege violations of laws governing water pollution, toxic waste and pesticides.

Office adrift

Unresolved air complaints filed in Texas, Arizona and Illinois obtained by iWatch News allege that by failing to provide equal protection to poor, minority communities, state or local environmental regulators are in violation of Title VI of the Civil Rights Act of 1964.

If OCR substantiates a community’s claims, it can try to broker an informal settlement between the complainants and state or local regulators. If the matter can’t be resolved this way, the EPA can eliminate federal funding to the regulatory agency.

OCR has settled a number of cases informally. But it has “never contemplated the death penalty, in the form of removing federal funding,” said Keith Harley of the Chicago Legal Clinic, who wrote the Ford Heights complaint.

Most of the Clean Air Act complaints filed with OCR cited facilities included on the EPA’s list of so-called high priority violators. As iWatch News has previously reported, the criteria for being named a high priority violator include excessive emissions of one or more of 187 hazardous airborne chemicals known as air toxics; violation of a state or federal order; and monitoring or recordkeeping deficiencies that “substantially interfere with enforcement.”

The complaints also cited “disproportionately high” effects of air pollution in the impacted communities — the same language used in a 1993 executive order from President Bill Clinton making environmental justice part of each federal agency’s mission.

Lawyers for some of the complainants say Clinton’s order has been of little value. “Despite some 200 complaints to the contrary, [OCR has] never once found significant ‘adverse’ and ‘disproportionate’ harm — never once,” Harley said. “And that is, to me, evidence of an office which has real fundamental, internal conflict and debate about its core responsibility.”

A 2006 evaluation by the EPA’s Office of Inspector General came to a similar conclusion. In a survey of EPA program and regional offices, the IG found that 87 percent of respondents had not been asked by management to perform environmental justice reviews, as required by Clinton’s executive order. As a result, the report said, “the Agency cannot determine whether its programs cause disproportionately high and adverse human health or environmental effects on minority and low-income populations.”

A March 2011 review of OCR by Deloitte Consulting, commissioned by the EPA, found that the office “has drifted in focus and struggled to perform fundamental tasks.” In its partially redacted report, Deloitte criticized OCR for focusing too much on “minor responsibilities” and “not enough on the critical cases affecting … disadvantaged communities.”

The Deloitte report suggested that Jackson and her predecessors were partly to blame for the office’s ineffectiveness. “The Director of OCR has a direct line reporting relationship to the EPA Administrator and takes administrative direction from the Chief of Staff or Deputy Chief of Staff on a day-to-day basis,” the consulting firm found.

In December 2010, Jackson chose Rafael DeLeon to lead the office. He manages an annual budget of $2.3 million and a staff of 38, nine of whom work on Title VI cases, according to the EPA spokeswoman.

In the wake of the damning Deloitte evaluation, DeLeon, who also headed OCR for a time during the Clinton administration, came under fire. The National Whistleblowers Center called for his ouster, alleging that he made disparaging remarks about former EPA whistleblowers and has had “numerous” discrimination complaints filed against him by female staffers.

“We call on you to make a clean break from the past,” Richard Renner, the center’s legal director, wrote in an April letter to Jackson. “We call on you to make a decision that visibly rejects discrimination, retaliation, and intimidation … We need your decisive leadership to end the paralysis of silence.”

The EPA did not respond to iWatch News’ requests for an interview with DeLeon, but the agency spokeswoman said Jackson appointed him “due to his extensive experience and leadership in civil rights issues. DeLeon is working to strengthen staff and management capabilities within the Office of Civil Rights.”

Jackson has also not responded to multiple interview requests for iWatch News’ and NPR’s Poisoned Places series.

Long-delayed complaints

OCR was created in 1984 and received its first Title VI complaint in January 1992, according to the Michigan Bar Journal. Filed for a second time in July 1994 — the EPA claimed to have lost the original — that case remains unresolved.

The complaint, filed on behalf of poor, largely African-American residents of Flint, Mich., sought to stop construction of a wood waste-fired power plant. The area already was home to a cement kiln, an asphalt plant and a fuel storage depot.

While the case stalled at OCR, the Genesee Power Station was built. “The people I represented … most of them are dead,” said Thomas Stephens, a lawyer who represented the NAACP in an unsuccessful lawsuit seeking to overturn the plant’s air pollution permit. “That’s what EPA has done for them: They’ve done nothing.”

The plant continues to emit lead and other pollutants. The poverty rate in Flint stands at nearly 30 percent, according to the American Community Survey.

Jeff Holyfield, a spokesman for CMS Energy, whose subsidiary runs the facility, said it “operates within state and federal environmental standards… The plant has established a record of being a good corporate neighbor, including a positive relationship with a local elementary school.”

According to a log provided to Deloitte, only 6 percent of all complaints — 15 of 247 — filed with OCR between 1993 and October 2010 were accepted or rejected within the one-month period required for review. “In fact,” the Deloitte notes, “half of all the complaints have taken one year or more to [accept or dismiss].”

After OCR failed to act on a 2003 complaint alleging disproportionate impacts of air and water pollution, the Rosemere Neighborhood Association, an advocacy group for low-income communities in Washington state, took the office to court. Six years later, judges on the Ninth Circuit Court of Appeals cited “a consistent pattern of delay by the EPA” in overturning a lower court decision to dismiss Rosemere’s lawsuit.

“Rosemere’s experience before the EPA appears, sadly and unfortunately, typical of those who appeal to OCR to remedy civil rights violations,” Judge A. Wallace Tashima wrote. “EPA failed to process a single complaint from 2006 or 2007 in accordance with its regulatory deadlines.” The EPA reached a settlement with Rosemere in March 2010 that required the agency to keep better track of its Title VI complaints and pay more than $115,000 in legal bills the group had racked up during the litigation.

It took Steve Brittle, president of Don’t Waste Arizona, Inc., an environmental group in Phoenix, nearly a decade to get a response to the Title VI complaints he filed on behalf of residents of Hayden, Ariz., where a copper smelter has polluted the air for decades. The town is 84 percent Hispanic, according to the 2010 census, and roughly one-quarter of its families live below the poverty line.

“EPA’s Office of Civil Rights understands that there has been a delay and I do sincerely apologize,” Helena Wooden-Aguilar, OCR’s assistant director, wrote in a July email to Brittle about his 2002 and 2003 filings. “In our effort to continue investigating your complaints we are following up with the allegations and issues brought forth in your complaints.”

“Nine years later? Are you kidding me?” Brittle said. “I call the Office of Civil Rights the biggest fraud in D.C.”

The EPA spokeswoman contended that OCR’s performance is improving. “EPA has committed significant time and resources to reducing the backlog of Title VI cases, and is working diligently to resolve these as well as recent cases,” she wrote. “In 2010 alone, EPA processed 26 complaints, which is its highest yearly resolution rate ever achieved.”

‘Studying EJ communities to death’

Since OCR’s legal defeat in Washington state and the Deloitte audit, Jackson has tried to give the EPA a new direction with Plan EJ 2014, a 186-page strategic plan. In a message to her to colleagues in September, Jackson said the document “offers a roadmap that will enable us to better integrate environmental justice and civil rights into our programs, policies, and daily work.”

Activists in polluted communities are unimpressed. “We don’t need another bureaucratic document,” said Suzie Canales, co-founder of the Corpus Christi-based Citizens for Environmental Justice. “Stop studying EJ communities to death, declare publicly that no one should be living this close to [industrial facilities,] then back up the words with a commitment by EPA and the White House to see that it happens.”

OCR first received a complaint about conditions in Corpus Christi in November 1994. The complaint alleged that a history of discriminatory housing and industrial development policies had caused neighborhoods like Dona Park, where Tammy Foster and her husband live, to bear excessive burdens from toxic waste and polluted air and water.

The case targeted Texas regulators “because there is practically no follow-up or prompt investigation” of residents’ allegations of pollution violations by industry, the complaint said. “In many cases, follow-up inquiry is hours, days or months after-the-fact of violations doing little good to expeditiously correct egregious pollution conditions or effectively safeguarding the right to clean air, water and environment for citizens.”

In June 2003, the EPA reached an informal agreement with Texas officials and sent a letter to Neil Carman, the state Sierra Club’s clean air program director, who filed the Corpus Christi case and another — also unresolved — on behalf of residents of Beaumont, Texas, a refinery town east of Houston. As of September both cases had only reached “partial” resolution, according to the EPA’s list of open OCR complaints.

“I was so disgusted with it all. It’s been kind of hard to talk or think about it since then,” said Carman, who worked as a state air pollution regulator for 12 years. “I guess it was some kind of an informal resolution. But the state didn’t have to do a whole lot — in fact, in my view, they haven’t done anything. That’s a big problem.”

Harley, the lawyer representing residents of Ford Heights, Ill., in the pending complaint over the tire plant, had better luck with two previous complaints. Both were settled informally. To successfully resolve an OCR complaint, “you have to remain very actively engaged in the process,” he said.

In the pending Ford Heights case, Harley said he has submitted updates to the office “probably on a dozen occasions … to demonstrate what the actual on-the-ground harm was as a result of the permitting choices Illinois EPA made.”

Because financial and operational issues have kept the town’s tire-burning power plant out of service for extended periods of time, Harley said, his clients have the “luxury” of letting the process run its course.

But if the “public’s health, safety and welfare are being damaged every single day,” he added, “then OCR is not where you need to go.”

Correction (Dec. 14, 12:05pm): iWatch News originally reported that residents of Ford Heights, Ill., filed a complaint against Geneva Energy, LLC. In fact, the complaint was filed against the Illinois Environmental Protection Agency and alleged that the agency had failed to act against Geneva Energy.