Tidying up my family’s summer vegetable and flower gardens brought some calmness to a hectic week. With every season and year that passes, playing in the dirt as therapy gains greater significance for me. I recall when my boys (now teenagers) were young, giving them a shovel and dirt or just being outside would provide hours of entertainment. Maybe the simplicity of the activity throws our souls back to a slower time. I don’t know.
Residents in northern Birmingham neighborhoods are not able to benefit from this therapeutic activity. Their summers are not filled with the simplicity of moving soil around on their property. They cannot allow their children or grandchildren to dig in the yards of their homes. In fact, if their children or grandchildren inadvertently do get down in the dirt (as kids often do) they have been instructed to wash their hands and take off their shoes before coming inside. Hundreds of residential properties are contaminated with toxic chemicals. Arsenic. Lead. PAHs. Soot continues to accumulate on porches and chemical odors are commonplace.
This summer, the EPA began their investigation into Gasp’s Title VI complaint — one of many actions Gasp has taken to address the pollution. We heard in-depth interviews and testimonies from folks living in the impacted neighborhoods. Residents shared the stark realities of how legacy and ongoing pollution have altered their lives and their health.
An elderly woman who every summer for years took pride in her large, well-nurtured vegetable garden that yielded produce for her family and her neighbors shared her memories. At times, the details escaped her, but the joy her backyard garden brought her was palpable. She wonders, now that she knows about the toxic soil, if eating those vegetables year after year could have affected her families’ health. She doesn’t garden anymore.
A retired veteran who gave 30 years of service to our country spends more time outside washing the soot that accumulates on his lawn furniture than he does sitting in that furniture enjoying the outdoors. As a self-described “clean freak,” he is fairly satisfied how the water pressure of the hose cleans the soot off of his new windows, but he grows tired of this mundane chore that is as frequent as taking out the trash.
Also this summer, news broke of Oliver Robinson taking bribes from Drummond Coal and Balch & Bingham to undermine the continued cleanup of toxic contamination in Birmingham and our efforts to expand the investigation into Tarrant.
While it is not terribly shocking that big polluters and their expensive law firms engaged in nefarious activity to maintain the status quo, the silence that followed was. Where are the other elected officials denouncing Drummond Coal’s and Balch & Bingham’s immoral behavior? Where are the opinion letters or full page ads from our corporate leaders and institutions demanding for an apology or, better yet, restitution and cleanup from Drummond Coal and Balch & Bingham? Will the reach of these companies’ tentacles prevent justice from taking priority over the health of entire neighborhoods of people? The health of our children?
The summer of 2017 could have been the beginning of a paradigm shift for the most powerful corporations and institutions in our state. The federal investigation is providing the “cover” for members of the leadership class to side with the residents in northern Birmingham neighborhoods and denounce the actions of Drummond Coal and Balch & Bingham.
Although fall has officially begun, it is not too late. We need to hear from the influential voices denouncing the immoral actions of these corporations and calling for the clean up and reduction of pollution in northern Birmingham neighborhoods. Perhaps by taking action today we can ensure that the generations of tomorrow will have the benefits of a clean and healthy environment.
Start by telling the Birmingham Business Alliance to remove Drummond CEO Mike Tracy and Balch & Bingham Partner Stan Blanton from their board of directors and from barring representatives from leadership for at least two years.
On December 29, 2016, the EPA withdrew a proposed rule to amend its nondiscrimination regulation regarding compliance information for Title VI of the Civil Rights Act.
Last year Gasp weighed in on the proposed changes and objected to the removal of deadlines in the proposed rule. We are happy to report that EPA considered Gasp’s and other groups’ comments opposing this change and has decided to withdraw the proposed amendments.
EPA is also moving enforcement of external compliance with Title VI from the Office of Civil Rights to EPA’s Office of General Counsel. This is a positive step and will bring pertinent expertise and ability to handle the backlog of complaints to the process. In turn, this change could bring much-needed relief to communities suffering a disproportionate burden of environmental harm.
However, “disparate impact” is still not sufficiently defined in EPA’s final plan. From Gasp’s comment on the EPA’s Office of Civil Rights Notice of Proposed Rulemaking, a disparate impact can be legally defined as follows:
The Supreme Court of the United States addressed the concept of disparate impact under Title VII of the Civil Rights Act by reasoning that disparate impact liability furthered the purpose and design of the statute. The Court noted that “Congress directed the thrust of [§ 703(a)(2)] to the consequences of employment practices, not simply the motivation.” Antidiscrimination laws should be construed to encompass disparate impact claims when their text refers to the consequences of actions and not just to the mindset of actors. A plaintiff bringing a disparate impact claim challenges practices that have a “disproportionately adverse effect on minorities.” The U.S. Supreme Court also reasoned that “[r]ecognition of disparate impact liability under the [Fair Housing Act] also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. ” In its Interim Guidance, the EPA acknowledges that frequently “discrimination results from policies or practices that are neutral on their face, but have the effect of discriminating. Facially-neutral policies or practices that result in discriminatory effects violate EPA’s Title VI regulations unless it is shown that they are justified and that there is no less discriminatory alternative.”
As seen above, current case law reflects a disparate impact in the employment or housing context. EPA should have given some direction and definition as to what it looks like when a community is disproportionately impacted by environmental pollution. Without this critical guidance, and as has happened in the past, mere adherence to environmental regulations could become the standard without considering disparate impacts on minority communities.
The very intent of ensuring other agencies who receive funds from EPA comply with Title VI is to ascertain that environmental racism is not occurring, and address it accordingly if it is. Accordingly, EPA would need to provide very clear guidelines on what constitutes a disparate impact.
On January 18, 2017, EPA addressed the above issue in part by issuing a Final Compliance Toolkit. Importantly, EPA removed the rebuttable presumption that compliance with an environmental law is a defense to a disparate impact claim. Specifically, EPA will examine whether site-specific information demonstrates the presence of adverse health effects from NAAQS pollutants, even though the area is designated attainment for all such pollutants and the facility recently obtained a construction and operating permit that ostensibly meets applicable requirements.
EPA’s assessment would seek to establish whether a localized adverse health impact, as indicated by the NAAQS, exists in the area at issue and has been (or will be) caused by the emissions from the power station even though the impact of the facility had previously been modeled to demonstrate that the source met.
The Toolkit also recognizes impacts other than health impacts in a community. Specifically, the non-health harms EPA will consider, include, among other things, economic (e.g., depressed property values), nuisance odors, traffic congestion, noise and vermin.
With respect to the non-health harms alleged (e.g., economic, traffic, noise), Title VI allows agencies to consider whether these effects are occurring and, if so, whether they are sufficiently harmful to support a violation finding.
Gasp plans to continue to be a part of the conversation for further improving EPA’s Title VI compliance program. Gasp also enthusiastically welcomes the positive changes in the final plan. Although it is always uncertain how a new administration will handle agency actions, Gasp looks forward to an improved program in 2017.
 See Griggs v. Duke Power Co., 401 U.S. 424 (1971)
 Id. at 432 (emphasis added).
 See Id. and Smith v. City of Jackson, 544 U.S. 228 (2005).
 Ricci v. DeStefano, 557 U.S. 557, 577 (2009).
 Texas Dep’t of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. __ (2015).
 Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits (EPA, Feb. 5, 1998) at 2
This story has been updated with the webcast link and to correct the time of the event.
The. U.S. Environmental Protection Agency has announced that it is hosting a public meeting at Howard University School of Law in Washington, D.C., Tuesday, March 1 from 3–6 p.m. The meeting will be live-streamed via webcast and teleconference. The call-in number is 877-887-8949 and the conference ID is 58156799. Registration is optional.
Last month the EPA released what’s called a “Notice of Proposed Rulemaking” to modify how it addresses discrimination complaints. Title VI of the 1964 Civil Rights Act prohibits recipients of federal funding from discriminating on the basis of race, color, or national origin in programs and services. Examples of discrimination include any action or inaction that results in the segregation or denial of services, poor or decreased services, or inadequate participation opportunities.
In order to enforce Title VI, most federal agencies have adopted regulations that specifically prohibit discrimination whether it is intentional or not. In other words, if the programs and services inadvertently have a discriminatory effect, individuals can file complaints with that federal agency against the recipient of the federal funding.
There are currently four Title VI complaints from Alabama with the EPA, including two related to toxic air polluters in the Birmingham area. The EPA has a lackluster record when it comes to environmental justice complaints. To its credit, though, it is making a good-faith effort to change that. Comments are due March 14 (because the published deadline of March 12 falls on a Saturday).
Gasp is drafting detailed comments on the EPA’s proposed changes as well as the new Draft Case Resolution Manual. We’re in the process of recruiting other organizations and citizen groups to sign on. If your organization would like to be be a part of this effort, please contact us.
We have made it easy for individuals to take action in three easy steps: 1. Customize your letter. 2. Enter your contact information. 3. Click “Submit.” Take action now!
Si necesita asistencia en español, por favor contacte a la oficina de derechos civiles al (202) 564-7272.
Updated on Tuesday, May 5 to include link to film.
BIRMINGHAM, Ala. — Gasp is proud to announce that “Toxic City: Birmingham’s Dirty Secret” won a Gold Hermes Creative Award in the documentary category. The award is given by the Association of Marketing and Communications Professionals. To celebrate this honor, Gasp announced that it is making the film available online for free starting May 5 at gaspgroup.org/toxicbham.
Directed by Hunter Nichols, the 26-minute film tells the story of the people affected by historic and ongoing industrial air pollution in several Birmingham communities. Collegeville, Fairmont, Harriman Park and North Birmingham are a part of an EPA Superfund Site. Soot and chemicals continue to rain down on residents and their property.
“This award is richly deserved by the featured residents whose stories Hunter captured so beautifully,” said Gasp Executive Director Stacie M. Propst, PhD. “‘Toxic City’ is part of a larger narrative about equality and justice. It marks a milestone in our fight to ensure all Alabamians have healthy air to breathe.”
During the production of the film, Nichols encountered a 1926 segregation-era map in the archives at the Birmingham Library. The zoning map shows that African-Americans were effectively quarantined to live in toxic, industrial parts of town. The story of “Toxic City” demonstrates a legacy of injustice that endures today.
“Toxic City” premiered at Birmingham’s historic Carver Theatre June 12, 2014. Gasp continues to advocate for stronger permits, increased monitoring and comprehensive health research. The film is also available on DVD.