Thirteen years and counting: anatomy of an EPA civil rights investigation

Introduction

SANTA FE, New Mexico — On June 26, 2014, Deborah Reade got a certified letter from the Environmental Protection Agency that was nearly a decade in the making.

“During the course of the EPA’s investigation,” the letter read, “it was determined that additional information is needed to clarify this allegation.”

Reade was incredulous.

Her original complaint to the EPA’s Office of Civil Rights, in 2002, seemed like a lifetime ago. Back then, she was research director for a group called Citizens for Alternatives to Radioactive Dumping. She’d alerted the agency to a potential pattern of discrimination against Spanish-speaking residents by the New Mexico Environment Department.

Her complaint focused on Triassic Park, a proposed commercial hazardous-waste disposal site, and a public participation process she said made it hard for poor and Spanish-speaking residents to voice concerns. The project was permitted by the state in 2002. Three years later, the EPA agreed to investigate Reade’s claims.

Then: silence, for nine years. Reade moved on, disillusioned with the process. Now, the EPA was pulling her back in.

“When I got this [2014 letter], I kind of groaned, ‘Really?’ ” Reade said during an interview in her Santa Fe home. “I was like, ‘Oh no. I don’t even remember how to do any of this,’ you know?”

By all accounts, Reade should have been free of the matter years ago.

EPA regulations dictate the timeline the Office of Civil Rights must follow when investigating complaints of discrimination allegedly committed by recipients of EPA funding. Within five days of delivery, the EPA must acknowledge receipt of the complaint and within 20 days decide if an investigation will occur. The investigation itself should take no more than 180 days, barring special circumstances.

The office’s director, Velveta Golightly-Howell, declined to comment on the Triassic Park investigation. She said, however, that “cases do age. That is just the nature of civil rights programs.”

A Center for Public Integrity review of 265 complaints filed from 1996 to 2013 shows that the EPA has failed to adhere to its own timelines: On average, the office took 350 days to decide whether to accept a complaint and allowed cases to stretch 624 days from start to finish. A consultant’s report, which examined cases from 1993 to 2010, found that the agency accepted or rejected just 6 percent within the allotted time period. Half took a year or more to be adjudicated.

Reade’s case — and the nearly decade-long investigation — is an extreme, but not unique, example of the agency missing its mark.

The EPA’s online docket, last updated in March, lists 17 cases accepted for investigation that are still awaiting disposition. The earliest was filed in 1994, the most recent in 2013.

In July, Citizens for Alternatives to Radioactive Dumping and four other groups signed on to a lawsuit asking a court to force the EPA to act on their civil rights cases, some of which have been pending since 1994. The lawsuit, filed by the environmental law firm Earthjustice, calls the delays “unlawful” and “unreasonable,” and asks that the EPA be compelled to issue preliminary findings in the cases and impose remedies when warranted.

Environmental justice advocates say such delays send a message to state regulators and residents that complaints are not important and make it hard for EPA to reconstruct events many years after the fact. People are left to set their own standards about what discrimination looks like.

“They don’t care that this inequality is rampant and that’s the message,” Reade said. “You’re powerless.”

A ‘good, safe spot’

Triassic Park exists only on paper.

The hazardous waste facility, first permitted by the state in 2002 and now up for renewal, was never built. If it had been, it would be located on 480 barren acres nearly indistinguishable from any stretch along U.S. Highway 380 in southeastern New Mexico.

Pass a few cows grazing along the roadside and you’ll eventually find mile marker 196, 36 miles from Tatum and 43 miles from Roswell. The ground in this area is pockmarked with grass, tall weeds and errant debris — a beer can here, a broken comb there — likely thrown from the window of a passing car. Walking stick cactuses dot the landscape and tumbleweeds skip across the road. A small mesa rises in the distance, but for the most part, this part of Chaves County is flat and desolate, with only the occasional rumble of a semi-truck to break the silence.

“We were trying to find the sorriest piece of ground we could,” said Larry Gandy, whose father, Dale, conceived of the project along with a family of local ranchers, the Marleys. “It turned out they had a spot that grazes few cows, and it is a spot that actually sits below the water table. So we found a good safe spot with nothing we could contaminate, and that’s how we come to that site.”

The plan was to turn the site into a landfill that could accept up to 10,000 cubic yards of industrial waste each month. The company, Gandy Marley Inc., would be required to monitor the site for contamination for 30 years in exchange for taking in dangerous substances such as lead, mercury, benzene and PCBs, as well as soil from remediation sites and other debris. The original plan also included two evaporation ponds and four tanks that, combined, could hold upwards of 5 million gallons of waste.

In Chaves County — ground zero for UFO devotees and home to 2009 Kentucky Derby champion Mine that Bird — there are about 11 people for every square mile. Southeastern New Mexico is known as “Little Texas” to some — thanks to similar terrain and economies — and the “nuclear corridor” to others, a nod to a uranium enrichment plant and the U.S. Department of Energy’s Waste Isolation Pilot Plant, which stores radioactive waste.

Most county residents identified as Hispanic according to recent Census Bureau estimates. More than a third speak a language other than English at home and 21 percent of people live below the poverty level.

“From an environmental point of view, you have to understand the racism of putting [these facilities] in an area where people can’t defend themselves,” said Noel Marquez, an activist and artist in Artesia.

The early 1990s brought changes in EPA rules that left many clients of the Gandys’ oil field services company scrambling to figure out how to properly dispose of their hazardous waste. They applied for an NMED permit for Triassic Park in 1993, but the public review process didn’t begin until 2001.

Over those eight years, opposition began to percolate.

Victor Blair and Deborah Petrone had read Roswell Daily Record articles about Triassic Park. Petrone owned a postage-stamp-size plot of land about seven miles away, and the two began researching the facility, traveling to the Roswell Public Library to examine the permit. It was hundreds of pages long; Blair was astonished at the scale of the project.

“They were permitted to take scores of tons of each of these different chemicals,” Blair said. “And so it was just like, ‘Oh, man.’ That’s when we made the decision to fight.”

They connected with other activists who earlier had raised objections. Blair called Jaime Chavez, then an environmental justice organizer with the Water Information Network in Albuquerque.

Chavez explained their plight.

“He said, ‘If you two are the only ones involved in the resistance, that’s laughable,’ ” Blair recalled. “’You’re gonna have to be undercover and raise a stink. That’s all you can do right now. And when the stink raises a profile, it’ll attract other people who don’t like the smell. Then, maybe you can get enough people around you to make some noise.’ ”

Blair became the de facto man-on-the-ground, taking advice from Chavez during regular phone calls.

“You had to mobilize the community,” said Chavez, now an organizer with the Rural Coalition, a farmworker advocacy group. “The plan was to go door to door, getting these commitments, talking with your neighbor, spreading the word and delivering folks to these hearings, which we did.”

NMED sensed heightened public interest in the project and insisted that Gandy Marley hold public meetings, said Steve Pullen, who helped draft the permit for Triassic Park and is now compliance manager for NMED’s Hazardous Waste Bureau. Meetings were set for Roswell, Santa Fe, Tatum and Hagerman.

On July 19, 2001, Deacon Jesus Herrera of the Immaculate Conception Roman Catholic Church in Dexter walked into the Hagerman Elementary School auditorium with 15 or 20 other people from his parish. They’d come to him with concerns about Triassic Park. This, Herrera said, was supposed to be their meeting — a chance to ask questions and get responses in Spanish.

Things didn’t go as planned.

As the meeting progressed in English, Herrera rose and asked if the presentation also would be made in Spanish.

It wouldn’t, he was told. An interpreter was on hand but would only translate attendees’ questions into English. Some activists remember officials telling Herrera to “sit down and shut up.” The activists said they were incensed and embarrassed.

To Herrera, a clear message was sent to the Spanish-speaking members of the crowd: “What we say is not important.”

Most of the 150 or so residents began to walk out, forming a steady stream from the auditorium into the hallway. Organizers said they had submitted at least 20 requests for multilingual notices and language services to NMED during the permitting process.

Pullen said he thought Herrera had a “pretty good point” about the presentation. But, since the meeting was voluntary, he wasn’t sure it was his place to insist the entire proceedings be translated.

“I can only suggest,” Pullen said, “and perhaps I should have.”

State law does not require that permit applicants hold public meetings, though residents can request a public hearing through the NMED secretary to voice their concerns.

The meeting served as the basis for the civil rights complaint Deborah Reade filed with the EPA on September 12, 2002. The 27-page complaint alleged that the NMED had discriminated against Spanish-speaking residents during the Triassic Park permitting process.

Beyond the translation issues with the Hagerman meeting, the complaint pointed to the absence of Spanish versions of the permit, a fact sheet and several meeting notices. It alleged that the proposed facility would subject Hispanic residents to disproportionate levels of pollution.

The EPA didn’t accept the complaint until 2005. Reade prodded the agency in a letter dated November 20, 2007, submitting fresh allegations of public comments missing from the hearing record.

“We are writing to you to amend our original complaint because of new information that we received several months ago,” she wrote. “Unfortunately, we don’t actually expect that you will act on this amendment because of EPA’s history of ignoring virtually all complaints that are not dismissed outright.”

Digging up the past

Overcoming her hesitancy, Deborah Reade eventually responded to the EPA’s 2014 request for more information.

She enlisted the help of her friend, Petrone, who had since moved to Ohio, to interview residents. Petrone, who was finishing up her Ph.D. in education, agreed to tape some of the interviews.

The pair drove 3 ½ hours down U.S. Highway 285 from Santa Fe to Dexter to interview anyone who remembered anything about Triassic Park. They went through boxes of documents long stored in attics seeking information that might be helpful for the EPA’s investigation. Reade was heartened by what they found.

“People had not forgotten,” she said. “They were still discouraged because they felt they had no power and no chance to make a difference. Now I understood the enormous hurdles people had gone through to come to that Hagerman meeting — to make it all the way to testify, the few of them that did. And I went back actually energized from that experience.”

Some things have changed since 2001.

At the NMED, institutional knowledge about Triassic Park is dwindling. Most of the managers involved in the permitting process have left the agency, said Pullen, who has been there 23 years. The NMED is still digitizing the six boxes of documents associated with the permit, he said, and many have been archived.

“It’s going to be a challenge after 15 years to recall all of the circumstances during that Triassic Park permitting process,” Pullen said.

Nonetheless, he said, the controversy all those years ago changed the way the agency does business.

“It wasn’t until the Triassic permit process in late 2001 that people were asking for these translation services,” Pullen said. “And since then, we have translated every permit hearing that we’ve been involved in at the Hazardous Waste Bureau.”

The agency also posts all of its notices in Spanish and has also translated some notices, and arranged for translators, in the languages of the Navajo and Zuni tribes, who might be concerned about facilities in the western portion of the state, Pullen said.

Then-Gov. Bill Richardson signed an executive order in 2005 requiring all departments, boards and commissions to make sure that public health and environmental notices are posted in Spanish, English and tribal languages or dialects where appropriate.

“It just became the practical and best way to do business,” Pullen said.

But the state is still far from utopia for low-income and minority communities, said Doug Meiklejohn, executive director of the New Mexico Environmental Law Center. He pointed to the 2013 repeal of a rule that required the lining of oil and gas waste pits as an example.

Environmental injustice “definitely exists in New Mexico,” Meiklejohn said. “It’s an issue because the state laws and state regulations don’t protect politically powerless people.”

Meiklejohn said his office gets about 100 requests for help each year. Most are turned away, he said, because the three lawyers can only add so many cases to their workload.

Larry Gandy said he doesn’t remember much about the initial permitting process for Triassic Park. His father, Dale, had overseen the details of the project, which received a 10-year permit from the NMED in March 2002.

Dale Gandy died on Dec. 30, 2011, less than a month after his 70th birthday and six years after EPA accepted the civil rights complaint for investigation.

“Everything you want to talk about happened many years ago, and the gentleman that dealt with everybody is no longer here,” his son said.

But Gandy Marley hasn’t abandoned Triassic Park.

The company initially tried — unsuccessfully — to position the proposed facility as a destination for waste from Superfund cleanups and, for a time, as a nuclear fuel rod recycling facility through a now-defunct Energy Department program. The clients it hoped to serve found other ways to dispose of their waste, leaving Triassic Park with a permit but no customers.

In 2011, Larry Gandy filed an application to renew the permit, as he is required to do every 10 years. The notice of that re-application was issued in English and in Spanish. The filing reflects a dramatically scaled-back project; it is essentially a placeholder, Gandy said, to keep the permit alive while the company figures out its next steps.

“It is the only permit like this in the state of New Mexico, so we still believe at some point in time, it might still be a viable project,” Gandy said.

Deacon Herrera, who spoke out at the tumultuous Hagerman meeting in 2001, is still a voice for his community. These days, however, he focuses on immigration reform.

He takes his lead from parishioners, he said, and furor over Triassic Park has died down.

“Maybe they lost their faith in that matter,” Herrera said.

By September 2014, Reade had collected two binders of documents, interviews, and written statements about Triassic Park. She sent it to the EPA’s Office of Civil Rights, her hope tempered with realism.

“I don’t really expect anything from them,” she said.

It’s been 312 days. Her case is pending.