‘They figured our neighborhood is black, so they’ll do it’

Introduction

SYRACUSE, New York — Aggie Lane made her neighborhood’s pitch on July 11, 2005. Flanked by eight colleagues from the Partnership for Onondaga Creek, a citizens’ voice for the south side of Syracuse, New York, as well as a half-dozen supporters, Lane pressed the case for civil-rights claims targeting a county government bent on putting a sewage plant in her largely African-American community.

At the U.S. Environmental Protection Agency’s regional office in New York City Lane presented to a table full of civil-rights investigators and lawyers a PowerPoint detailing the Southside community’s struggles: the state highway dissecting the historically black neighborhood; the industrial plants dumping on residents; and now the sewage treatment facility threatening to add to the burden.

“We all know that a white, middle-class community would not put up with a sewer facility in a residential area,” Lane, herself a white, middle-class transplant to Southside Syracuse, said to the regulators.

One year earlier, Lane and fellow members of the Partnership had filed a complaintalleging that the Midland Avenue Regional Treatment Facility — planned by Onondaga County, with state approval — would discriminate against the Southside’s black residents “both because of the siting and the [facility’s] impacts.” Filed under federal civil-rights law, the complaint claimed the plant would harm the “health and overall quality of life of the surrounding community,” as well as adjacent Onondaga Creek.

Partnership members believed the complaint epitomized the fight for environmental justice. To bolster their argument, they noted the county’s proposal for a similar plant on the north side of Syracuse, then predominantly white. That facility used alternative technology much like the Partnership had been advocating to no avail, according to the complaint, making it smaller and less obtrusive than what Southside residents were facing.

“We felt the county was putting something in here because it’s a black area, and the EPA would see right through it,” recalled Joanne Stevens, a lifelong resident of the Southside who became a Partnership member.

The EPA’s Office of Civil Rights disagreed, dismissing the Partnership’s complaint in March 2005 after conducting a six-month investigation without interviewing residents or visiting the Southside area.

Now, at this meeting four months later, EPA investigators said little about the decision. They listened as residents challenged the civil-rights office’s finding that the Midland plant did “not have a significant adverse impact” — questioning its rationale for making such a determination and criticizing an inquiry that relied on county records. EPA officials offered a small concession that would give residents hope for their cause:

“If we receive new significant information,” one investigator told the group, according to Partnership meeting minutes, “we may investigate.”

“They thought that would be the end of it, but they didn’t know us,” Lane said, alluding to the 650-page addendum the Partnership filed a year later to supplement its case. She remembers mailing it, certified, and following up with a phone call — never to hear from the EPA again.

The brush-off was not unusual. As an investigation by the Center for Public Integrity has shown, the EPA’s civil-rights office — assigned to enforce Title VI of the Civil Rights Act of 1964 and assess environmental-discrimination claims filed by communities of color — almost always closes cases without action. Among the minority of Title VI complaints sparking investigation — 64 such cases over 17 years, including Southside Syracuse — records suggest the office has failed to fulfill its mission of rooting out discriminatory acts at agencies receiving EPA financial assistance.

Regulators have rarely closed an investigation with official action on behalf of minority communities. By the time the Partnership meeting occurred — 12 years after the EPA accepted its first civil-rights claim, in 1993 — the agency had resolved five cases, all without findings of Title VI violations, and through a mediation process not involving the complainants. In the decade since, the agency has settled an additional seven.

Alma Lowry, an environmental lawyer and former director of Syracuse University’s public-interest law firm, which represented Southside residents, said EPA’s civil-rights record has sent a clear message to citizens: “There’s no gavel behind [Title VI].” She once worked at the Detroit law firm that has logged some of the earliest Title VI complaints with the agency; one complaint, filed on behalf of a Flint, Michigan, neighborhood, has remained open, pending investigation, for 16 years. Last month, the Flint community joined four others in a lawsuit challenging the EPA for what it called a “pattern and practice of unreasonable delay . . .” in investigating their civil-rights claims. “The agency hasn’t been able to take off its environmental hat and put on its civil-rights hat,” Lowry said, explaining why she believes the EPA has never once found a formal Title VI violation in 22 years.

EPA officials declined to discuss details of specific cases, including Syracuse. The director of the agency’s civil-rights office, Velveta Golightly-Howell, has promised to make a “full-blown effort” to improve the handling of Title VI complaints. “Our goal is really to provide relief for the complainants who have brought their issues and concerns to [the office],” she said.

The quest for justice in Southside Syracuse, however, tells a larger story of how people in some of the most disadvantaged communities can put forward a strong civil-rights case — replete with letter-writing campaigns, extensive research and what residents considered “smoking gun” documentation suggesting environmental racism — yet see little meaningful response from those enforcing the very law meant to protect them.

To this day, Lowry ranks Southside as “one of the most organized, effective and politically aggressive communities I’ve ever worked with.” Yet it lost its battle against the Midland Avenue sewage plant, a source of bitterness for residents still. Those who fought the hardest cannot help but pin blame on the EPA.

“If that kind of community can’t make Title VI work for them,” Lowry said, “I don’t know who could.”

A forgotten neighborhood

Southside Syracuse, in Onondaga County, is like many other inner-city neighborhoods across the United States: pockmarked by crime and poverty. Bars and liquor stores dominate street corners, where drug deals can burst into the open. Residents hear gunfire while lying in bed at night. New and refurbished houses stand like beacons on city blocks. Most houses are in varying states of disrepair — dilapidated, boarded-up or abandoned. In some pockets, foundations and empty lots are all that remain.

Residents remember the Southside in better days, with its luscious street trees and regal Gothic buildings. For the longest time, those who live here — 84 percent of whom are African- American, and earning an average per capita income of $8,516 — have viewed the neighborhood as the “ghetto,” forgotten by white, wealthy Syracuse.

“Officials never invested money into this slum,” explained Elmore Davis, who, in 1998, moved to the Southside with her two daughters, lured by the promise of a house for $500 down.

Against this backdrop of decay, the county’s sewage plant does not seem terribly threatening. Situated on a bank of Onondaga Creek, near a dairy, a laundry, a canning factory and a bus terminal, the Midland Avenue Regional Treatment Facility looks like any other industrial building. At 24,000 square feet, the aboveground structure rivals the public-housing apartments dotting the area’s residential streets. It sits 250 feet away from the closest home, surrounded by open space where the county has planted trees and shrubs, a testament to the community’s activism.

Inside the facility, two “vortex swirl concentrators” act like giant toilets and flush sewer water down a pipe to a municipal treatment facility approximately five miles away. Underground, a 2.5-million-gallon tank stores storm water. As wastewater builds up, the “swirlers” disinfect the flow with chlorine and dump it into the creek. There are no stacks or vats spewing chemicals into the air. Many newer residents have no idea the plant was built to clean up a creek once so full of raw sewage that the stench wafted across intersections and seeped into homes.

For much of the last century, Syracuse’s civic leaders have used the creek as a sewage channel. In the early 1900s, they designed a sewer system collecting sewage and storm water, and featuring up to 90 overflow points where waste could discharge into waterways during rain events. One such waterway is Onondaga Creek, which feeds a lake sharing its name. By the 1980s, untreated sewage had dirtied the creek, drying on its banks before funneling into Onondaga Lake, then among the nation’s most polluted.

Targeting lake polluters, a local environmental group sued Onondaga County in 1988 under clean-water laws, alleging its “combined sewage overflows” violated safety standards. The New York State Department of Environmental Conservation joined the lawsuit, aiming to force a clean-up of Onondaga Creek.

As far back as 1979, county officials had drafted such a plan. The compliance program relied on swirlers to catch solid waste and chlorinate wastewater. It hinged on sewage plant “storage units,” designed to treat flow on rain-drenched days. Officials proposed constructing four of these units, each above ground, and processing millions of gallons of wastewater a year. Even then, the county’s plan included the Midland plant.

It took another two decades and a federal-court order before Onondaga County would implement its plan. In 1998, the clean-water litigation yielded a settlement requiring county officials to eliminate creek pollution. The county was to capture 85 percent of the average annual precipitation gushing into the combined sewers to reduce overflows. The settlement also dictated specific projects to be undertaken throughout Syracuse, including the Midland plant.

The judgment identified that plant as the first to be built — and the biggest. It would consume an entire city block and rival the size of a football field. A mile-long, 12-foot-diameter storage pipe would feed the plant.

Within months, the county’s proposal was circulating among Southside residents who, by then, harbored a deep sense of mistrust. Over the years, government officials had built multiple urban-renewal projects in the neighborhood, evicting residents and razing homes. Industry crept further into the area, too; today, seven minor industrial facilities operate within four blocks, all formerly residential.

That county officials would site yet another project — and especially a sewage plant, which, in the words of Southside resident Lionel Logan, “was a negative connotation” — in the same community sent a clear message to residents.

“They figured our neighborhood is black, so they’ll do it,” said Louise Poindexter, who has lived on the Southside for 20 years. She and other residents voiced their objections to the Midland plant at a series of public hearings in 1999. They criticized the proposal for displacing citizens and permitting the release of chlorine into the creek. By 2000, residents had formed the Partnership for Onondaga Creek and were organizing neighbors and lobbying politicians.

They demanded alternative locations for the plant but, as the Partnership’s Stevens put it, “That seemed like trying to stop a freight train.” They next pressed for technologies they believed would reduce the facility’s presence in their neighborhood. For them, the most appealing was underground storage, which holds sewage overflow in tanks during storms. It did not require chlorine or an aboveground facility. The county could build a park or a playground on top of the tanks, they argued.

City politicians soon took notice. “I thought, ‘Of course, there are other alternatives,’” recalled Joanne Mahoney, the Onondaga County executive, who then served on the Syracuse city council. She remembers meeting with county officials to discuss the options espoused by the Partnership, to no avail.

“If it wasn’t about cost,” Mahoney said, summing up the county position at the time, “it was along the lines of ‘It’ll improve the neighborhood if we put a plant there.’”

County administrators often presented the Midland plant as a kind of fait accompli: The plant, they noted at hearings and in documents, solved a serious environmental problem contributing to neighborhood nuisances. They reminded critics about the court order, and insisted the Midland location made the most technical sense. Officials acknowledged that the plant had negatives but minimized them. Some said that landscaping the grounds was sufficient recompense. “I thought it was kind of patronizing,” said Mahoney, of the county’s responses. She, along with the rest of her city-council colleagues, voted not to sell the county the land it needed for the Midland plant.

Seeing her vote as one cast for environmental justice, she explained: “If combined sewage overflows were . . . running through one of the affluent, white [areas], we wouldn’t say, ‘What’s the cheapest thing to do?’ And we’d never suggest that just putting up a park would make the neighborhood whole again.”

By 2001, Onondaga County had sued the city of Syracuse to acquire that land, prompting a legal mediation between the two administrations and designated “stakeholders,” brokered by the state. Partnership members lobbied state regulators for a seat at the negotiating table as well; when ignored, they showed up at the weekly sessions anyway. Over nine months, they met with government engineers and administrators and kept up their campaign for other options. In the summer of 2002, county officials seemed ready to relent. Regulators even drafted a proposed agreement declaring that “the best solution . . . incorporates the use of underground storage” — until the county balked.

“The county said, ‘We’re going to court,’” said Joe Heath, general counsel for the six-tribe Onondaga Nation, which opposed the Midland plant and participated in the mediation, referring to a 2003 ruling seizing city land for the facility.

Onondaga County did make some concessions — subtracting one of three swirlers, for instance, and adding the underground tank. Administrators also agreed to buy an extra acre of land to construct only one building. The changes reduced the facility’s footprint by 7,000 square feet, and shifted it away from homes by 160 feet. In documents, county officials presented such plant compromises as “considerabl[e],” and “an effort to accommodate [community] concerns.” For residents, though, the scaled-down version was not enough.

“We said, ‘Put in underground storage,’ but the county couldn’t do that, okay?” said Logan, who, like many Partnership members, left the negotiations feeling dissatisfied.

“My neighborhood still has the sewage plant,” he added. “Sure, it’s smaller . . . but it still exists.”

‘Total disregard’

The Partnership shifted its focus to the EPA’s civil-rights office in 2004, when the group filed its Title VI complaint. While targeting Onondaga County, the complaint also named the state’s Department of Environmental Conservation, which, under the 1998 judgment, had to approve the county’s compliance program. It alleged that the county had violated civil-rights law in 2003 when issuing its final plan for the Midland plant — failing to allow for “adequate, meaningful public participation”; and adopting a design and location with “adverse impacts on a predominantly minority community.”

It was not the first time the civil-rights office had heard about the Midland plant. In 2000, the facility was cited as evidence of an alleged pattern of racial discrimination in a wide-ranging Title VI complaint targeting county and city administrations. Unlike Onondaga County, the city of Syracuse opposed the plant. Yet it “failed to mount an aggressive defense of its Protected Population neighborhood,” the complaint argued, as required by Title VI.

“The Midland plant was a clear example of the total disregard for people who live in those [Southside] neighborhoods,” said Mike Kisselstein, who, as manager of a local bank, penned the earlier complaint. “Technically, it’s discrimination.”

Rather than examine Kisselstein’s claim, the EPA denied it on procedural grounds because, the 2001 rejection letter stated, “it was not filed within 180 days of the alleged discriminatory act.”

Four years later, Southside residents were not about to let the EPA dismiss their case so easily. The Partnership offered a show of political support for its complaint, amassing a folder full of letters from federal legislators, university trustees, tribal members, local politicians, environmental advocates — “anybody who we thought had any clout,” Lane said. Within five months, the EPA accepted the complaint for investigation — in part. Investigators tossed out the first allegation as “untimely,” but not the second.

“The main gist of it, the [civil-rights office] was going to investigate,” said Lane, who, given the previous rejection, considered the partial acceptance a victory. Generally, the EPA can mediate some resolution of a Title VI complaint with the target of the allegations. The Partnership wanted nothing less. In the ensuing months Lowry, the group’s lawyer, wrote multiple letters to federal, state and county officials suggesting as much.

“We wanted EPA to say, ‘Yes, there’s environmental injustice here,” explained Lane, the complaint’s main contact, “and the way you can fix it is to go back to the negotiation table.”

Onondaga County disputed the allegation, calling the complaint “jurisdictionally and procedurally defective,” and arguing the plant would have little, if any, adverse impact. Responding to the citizens’ complaint, county attorneys contended that the EPA had already addressed the core issues. They pointed to an environmental assessment of the Midland plant conducted by the agency’s regional office, in New York City, which funded the $125 million project.

As required by law, EPA regional officials five years earlier had reviewed the Midland plant for potential environmental impacts. In the 1999 assessment, the agency ceded that the facility could cause what it termed “high adverse impact,” albeit “temporary and/or . . . offset by the county’s measures to mitigate.” It agreed with the county that the plant tackled a larger environmental problem, and that the plant location — home to several sewer overflows and trunk lines — meets “requirements for engineering feasibility and cost-effectiveness.” And while the assessment included an environmental-justice analysis, examining a few nearby alternative sites, the agency said any facility would affect a similar population.

Ultimately, the EPA approved the Midland plant, issuing a “finding of no significant impact.” The agency affirmed this conclusion in 2004, stating that “no significant adverse environmental impacts will result from the construction and operation of this project.” That EPA finding, the county asserted in the civil-rights case, “precludes a finding of a Title VI violation.”

For Southside residents, the irony seemed rich. Soon after the EPA released its environmental assessment, the county built 1,000 feet of a plant pipeline, ripping up properties, and disrupting people’s lives. Now as the agency launched its civil-rights investigation, the county kicked off plant construction, seizing 45 townhouses, and evicting residents like Vernell Bentley, who lived in a public-housing unit across the street.

“They told me I had to go but I said, ‘I’m not going,’” recalled Bentley, one of the few to hold out for replacement housing. She remembers when trucks pulled into her dead-end street, leveling picnic tables and a basketball court. “They were boarding up my windows,” she said, “and putting up fences around my home.”

Once a close-knit community, the Southside has not necessarily recovered. After the evictions, Bentley and former neighbors scattered across the city. Many have disappeared since. “It just messed up the neighborhood,” said Bentley, who likens her experience to that of black citizens pushed out by urban-renewal projects in the 1960s and ‘70s.

“‘We don’t care about these Negroes, just put it here,’” she added.

By March 2005, the EPA’s civil-rights office had dismissed the Partnership’s complaint. Relying on the regional office’s 1999 environmental assessment, as well as the county’s paper trail for developing its sewer compliance plan, investigators determined that the Midland plant would not have a “significant adverse impact.” “Therefore,” the 2005 dismissal letter stated, “[the office] does not find a prima facie case of discriminatory effect.”

Some saw a larger pattern in the EPA’s dismissal. For years, its civil-rights office has interpreted compliance with environmental laws as evidence that a target’s actions or decisions would not harm a minority community. Experts note that, unlike Title VI, environmental laws are not designed to protect historically vulnerable populations; on the contrary, they are written for everybody. These laws also examine individual impacts — on the air, or in the water — rather than the cumulative effect, as required by Title VI.

“Compliance with environmental laws was conflated with compliance with Title VI,” said Lowry, who, like many, has viewed such an interpretation as a misreading of civil-rights law. In the Syracuse case, investigators did not evaluate what she described as legitimate resident claims about the county’s final plan — its disruption to the community, for instance, and its dislocation of residents — because of their reliance on an environmental review not intended to account for such consequences in the same way as Title VI.

“With Title VI and the EPA,” she added, “there is something of a disconnect.”

Stunned by what they considered an unfair investigation, the Partnership pushed for a meeting with EPA officials in the summer of 2005, during which they challenged the agency’s dismissal. When they heard the EPA’s concession, members set out to find what they considered “new and significant information.” Over nine months, they filed records requests and combed through documents detailing Onondaga County’s sewer compliance plan. By 2006, they had produced a 150-page addendum, backed by 500 pages of government records, outlining how plan architects had repeatedly made decisions that would burden the Southside over other neighborhoods.

They believed they had uncovered “the smoking gun” in a three-page document written by consulting engineers for county administrators. The 1998 document revealed that Onondaga County had planned to build a “swirl concentrator” just like the Midland plant on the Northside before evaluating alternatives that, the engineering report stated, “will reduce costs and disruption of the site.”

The county could capture the Northside’s sewer overflows by building an “oversize pipeline in both Midland and [nearby downtown],” according to the report, thus sparing the former “disruption.” The county later scratched this area’s sewage plant for a smaller, less intrusive “floatable control facility.”

“It was like, ‘Okay, that’s discrimination,’” said Lane, noting the Northside facility sat near luxury condominiums in a predominantly white area. A retired engineer, she saw the document as an expose of the ways the county was, in her words, “shifting the burden from the Northside, sparing them and placing it onto the Southside, where you can get away with it.”

Given all this work — and all this new information — Partnership members never expected that the EPA would fail to acknowledge their addendum, they say. Now, 10 years after their case’s dismissal, they have learned all about the agency’s lackluster record of adjudicating civil-rights claims. Still, their case has seemed as good as any could get. To them, the agency’s silence has left one lasting impression of its enforcement of civil-rights law:

“We do all the digging. We send them stuff. They don’t talk to us anymore,” said Lane, summing up the community’s Title VI experience. “It makes you cynical after a while. . . . You think, ‘What does any of this really mean?’”

Asked about Syracuse, Golightly-Howell, the EPA’s civil-rights chief, declined to speak about cases that have not “happened on my watch,” beginning in February 2014. In general, she pointed out, “the agency bears the burden of investigating and determining whether a prima facie case [of discrimination] has been established.”

Under her leadership, Golightly-Howell said, the civil-rights office has worked to implement a strategic plan for improving how investigators handle Title VI complaints. As part of this effort, it issued a position paper in May explaining the role of complainants during case investigations.

“We’ve made forward movement in the direction of increasing confidence,” she said.

After the EPA’s dismissal, Southside residents kept up their fight, protesting at every phase the Midland plant’s construction. They eventually benefitted from a shift in Onondaga County’s political landscape in late 2007, when executive Mahoney won her first election. Almost as soon as she had assumed office, Mahoney set out to revise the county’s sewer compliance plan. By then, the Midland plant had already been built, but not its feeder line. She cancelled that pipeline, as well as another proposed sewage plant.

“It was clearly the right thing to do,” said Mahoney, who has since implemented a plan largely relying on alternative technologies espoused by the Partnership, such as underground storage.

Today, the Midland plant is the rare sewage plant storage unit to actually be built in Syracuse. Mahoney’s sewer compliance plan has enabled her administration to reduce the footprint of every single proposed swirler facility except Midland. Some of those facilities became underground storage tanks, and are now nestled beneath parking lots. Others were never built.

That none of the city’s other neighborhoods have had to endure what they have endured remains a bitter pill to swallow for many on the Southside. “We got the plant,” the Partnership’s Poindexter said. “Nobody else did.” As residents see it, Southside may be in better shape today than it would be if it no one had spoken up years ago — their sewage plant is smaller, their creek cleaner. But none of these gains came about because the EPA’s civil-rights office did right by the community.

“What did the agency do for us? They didn’t do shit for us,” Poindexter said, echoing the sentiment among many neighbors. “They gave us hope when they knew there was none. That’s how I feel about the whole thing.”