Waiting for a response
Enmeshed in coal ash, Uniontown residents fought back, again, in court. In 2010, 34 residents living within a mile of the Arrowhead Landfill sued its then-operator, Phill-Con Services, accusing the company of violating federal clean-air and clean-water regulations. Eighty residents filed a second lawsuit in Alabama district court against the operator and a contractor, alleging “negligence, wantonness, nuisance, and trespass arising from the construction and operation of a landfill.”
The owners of the landfill property had filed for bankruptcy, complicating the residents’ lawsuits against the operator. In 2013, they settled both cases for a confidential lump sum translating into a nominal dollar amount per household — and little else. According to a motion filed on behalf of all the parties, the agreement stipulated that residents “waive all claims that they may have, whether local, state or federal, legal or administrative … relative to the location, construction or operation of Arrowhead Landfill.” Confidential provisions reportedly bar them from speaking about any harm they suffered. Phill-Con admitted no liability.
For many, bitterness runs deep.
“It makes me feel sad,” said Drew, a plaintiff in the lawsuits. In 2001, she returned home to Uniontown to care for her ailing mother, who died before the landfill opened. Living in a trailer on her family’s acreage, Drew signed on to the litigation in hopes of getting something better for the community.
“It doesn’t do any good,” she said.
Searching for a salve, residents turned to the EPA’s civil-rights office. In 2012, David Ludder, an environmental lawyer from Tallahassee, Florida, who once worked as ADEM’s general counsel, and represented Uniontown residents in their civil litigation, filed a Title VI complaint on their behalf. Unlike the lawsuits, the civil-rights complaint does not target the landfill owner. Rather, it hinges on the state’s activities. As the complaint argues, ADEM’s decisions to renew and modify the Arrowhead Landfill’s permit — doubling its trash volume to 15,000 tons per day, as well as its disposal area — have “the effect of adversely and disparately impacting African-American residents.”
The civil-rights office initially accepted the Uniontown complaint for investigation — one of just 64 such cases accepted over 17 years — but dismissed it, citing the pending litigation. When the lawsuits ended a year later, the residents tried again. This time, the EPA opened an investigation.
While the agency’s inquiry has seemed routine so far — contacting ADEM, and requesting information — it has taken some unusual turns. In August 2014, civil-rights investigators traveled to Uniontown to interview the 16 complainants. (Ludder and 29 original complainants have had to withdraw from the case because of that settlement of the civil cases.) Residents and advocates remember taking officials on a tour of the city and offering medical records, water samples and even nickel-sized peaches to bolster their case.
Despite EPA regulations setting a 180-day time limit for civil-rights investigations, the complainants have not heard from the agency since.
Neither has ADEM. “They didn’t come talk to us,” director LeFleur said. Generally, the EPA can mediate some resolution of a Title VI complaint with the investigation’s target. The agency can also strip the target of federal funding if investigators find that it has made decisions discriminating against communities of color.
To make such a finding, the EPA must determine that the actions of an agency such as ADEM have a discriminatory effect — what the law terms “disparate adverse impact.” Simply put, the EPA must find the alleged discrimination has harmed a community of color more so than others. In Uniontown, as the complaint notes, the percentage of African-Americans is higher than in all the states that send trash to the Arrowhead Landfill combined — 87 to 15 percent, respectively. Some say the EPA’s standard for determining what it calls “adversity” has never been so straightforward.
The debate over the adversity standard has raged on for years. As far back as 1998, the civil-rights office issued a now-infamous decision in a case involving a Detroit steel mill. Concerned about toxic air pollution, the mill’s African-American neighbors filed a Title VI complaint, which the EPA investigated. In its decision, the agency agreed that the plant spewed mercury, which can cause such ill effects as neurological disorders, tremors and kidney problems. But because the emission levels did not violate environmental standards, it said there was no disparate impact.
“Advocates said, ‘That’s ridiculous,’ ” recalled Lado, the Earthjustice lawyer. Under Title VI, they argued, the mere act of releasing mercury should constitute a disproportionate effect. “The agency was conflating standards,” she says, substituting environmental law for civil-rights law.
Under guidelines drafted in 2000, the EPA has allowed targets of civil-rights claims to raise what it calls a “rebuttable presumption,” essentially arguing there is no disparate impact if a facility complies with environmental standards. Recently, however, EPA officials have issued a position paper promising “to eliminate … the rebuttable presumption.”