Jeff Sessions, Corruption & Environmental Injustice in North Birmingham

Jeff Sessions, Corruption & Environmental Injustice in North Birmingham

Jeff Sessions, Balch & Bingham and Drummond CoMPANY

Environmental Injustice in North Birmingham

by Michael Hansen | March 8, 2018

Mother Jones is reporting that Attorney General Jeff Sessions was “deeply involved in coordinating the effort to thwart the EPA cleanup” in north Birmingham — more than we initially thought.

“Not only did his office take the lead on drafting the letter of complaint, it arranged a contentious meeting with EPA officials to press them to back off their efforts to clean up the polluted neighborhood.” (Mother Jones)

The former junior senator from Alabama has for years had deep connections to Balch & Bingham and Drummond Company. The two companies were the second and third largest sources of Sessions’s senate campaign contributions. That’s why we sent a blunt letter to Sessions on August 25, 2017 asking him to recuse himself “from any and all future involvement in the ongoing investigation into public corruption related to the so-called North Birmingham Superfund Site.” Unfortunately, the AG’s office has not deigned to respond to our request. We’ve not heard back in writing or via phone call.

Former EPA Region 4 Administrator McTeer-Toney recalled to Mother Jones that Sessions’s staffers, “were really, really pressing, trying to press senior officials to overrule what our decision was in the region. They wanted to go over our head, way over our head.” McTeer-Toney has since been replaced by former ADEM Director Trey Glenn as Region 4 Administrator.

According to Mother Jones, a December 2015 Balch & Bingham newsletter “touted a meeting with Sessions to discuss the 35th Avenue site and predicted a letter, signed by top Alabama lawmakers, would shortly be sent to the EPA expressing concerns over the agency’s methodology when it came to assigning blame.” Sure enough, Sessions, Sen. Richard Shelby, and Rep. Gary Palmer sent exactly such a letter to the EPA.

“I wish I could say it’s surprising how deep and how wide the public corruption goes with this scandal,” says Gasp Staff Attorney Haley Lewis. “I am disgusted at how many people who are supposed to be acting as public servants are going out of their way to go against the public interest in the northern Birmingham and Tarrant communities. If Sessions had to recuse himself from the Russia investigation, it’s even more clear he needs to recuse himself from any investigation into the corruption affecting much-needed relief for the residents of the northern Birmingham communities.”

Background

The North Birmingham Environmental Collaboration Project spans four neighborhoods north of downtown Birmingham: Harriman Park, Collegeville, Fairmont, and North Birmingham. Formerly known as the 35th Avenue Superfund Site, the project began in earnest in 2009 when an EPA air toxics study at three Birmingham schools was at the upper end of the range for acceptable levels of risk. The EPA in 2012 tested over 1,100 properties in the area for semi-volatile organic compounds, metals (e.g., arsenic and lead) and polycylic aromatic hydrocarbons (PAHs), including benzo(a)pyrene, benzo(a)anthrocene, and benzo(b)fluoranthene. This lead to a large scale remediation plan to remove and replace contaminated soil from properties.

The EPA in 2013 named five companies were named as “potentially responsible parties” (PRPs): Drummond Company, Walter Coke (now ERP Coke), KMAC Services, U.S. Pipe & Foundry Company, and Alagasco (now Spire). Typically PRPs negotiate with the EPA to either cleanup contamination themselves or to reimburse the EPA for their “share” of the cleanup costs. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) gives the EPA the authority to seek repayment through settlement agreements or through the Justice Department. By January 2014, all five PRPs declined to negotiate with the EPA to assist with the cleanup. Soil remediation efforts began the following month with the 52 most contaminated properties.

Gasp has been involved with the community since about 2010 when we began attending Community Advisory Board and neighborhood association meetings. Since then, we have assisted residents by providing technical assistance and legal intervention where possible. On April 18, 2014, Gasp filed extensive comments on ABC Coke’s Title V air pollution permit. A few months later, we did the same with the Walter Coke permit.

On August 26, 2014, Gasp petitioned the Jefferson County Board of Health to disapprove the ABC Coke permit and requested a hearing to argue our case. The Board of Health oversees the Jefferson County Department of Health, which is granted authority from the EPA to regulate air emissions in the county. They rejected our request for a hearing, setting off a lawsuit against the Board of Health that eventually made its way to the Alabama Supreme Court — where we won last year. We have yet to have a hearing on the ABC Coke permit, which is up for its five-year renewal next year.

On July 1, 2014, Gasp petitioned the EPA to conduct a site inspection for hazardous substances near the ABC Coke plant in Tarrant, a suburb of Birmingham that was not included in the 35th Avenue Superfund Site boundary. The EPA ultimately granted that request finding grounds for further investigation. In September 2014, the EPA proposed adding the 35th Avenue Superfund Site to the National Priorities List (NPL), which would have unlocked additional federal funding from the Superfund Trust for cleanup efforts regardless of whether or not the PRPs paid their share. Gasp strongly supported this effort and helped community members submit comments advocating for a comprehensive cleanup and long-term community revitalization. The proposal was never approved.

“I am disgusted at how many people who are supposed to be acting as public servants are going out of their way to go against the public interest in the northern Birmingham and Tarrant communities.” (Haley Lewis, Gasp staff attorney)

Meanwhile, some local and state lawmakers were weighing in opposing our efforts. The Jefferson County Commission passed a resolution condemning our work. The mayor of Tarrant, Loxil Tuck, sent a truly bizarre letter (pictured) via utility bills complaining about us to her constituents. State Sen. Jabo Waggoner and State Rep. Oliver Robinson filed a joint resolution in both houses of the Alabama Legislature admonishing the EPA for its actions in northern Birmingham. Attorney General Luther Strange wrote multiple letters to the EPA opposing the cleanup work — and received $50,000 in well-timed campaign contributions from Drummond around before and after those letters were sent. The list goes on and on. (The City of Birmingham was dead silent on the NPL proposal.)

Last year, former-Rep. Oliver Robinson, one Drummond Company executive (David Roberson), and two Balch & Bingham attorneys (Joel Gilbert and Steve McKinney) were indicted by the Department of Justice on corruption charges related to the ongoing environmental cleanup efforts in northern Birmingham. AL.com columnist John Archibald and reporter Kyle Whitmire broke the Robinson story in April 2017 — before he was indicted — detailing how he took more than $130,000 from Balch and Drummond to undermine the EPA’s cleanup efforts and, in particular, Gasp’s work.

Robinson pleaded guilty to the charges and is expected to be sentenced soon, facing up to 100 years in prison. Roberson, Gilbert, and McKinney pleaded not guilty and are awaiting trial. Federal investigators appear to still be trying to gather information.

AL.com natural resources reporter Dennis Pillion wrote an explainer piece for The Birmingham News last year that helps explain the history of the 35th Avenue Superfund Site in the context of the recent corruption revelations: North Birmingham’s 35th Ave EPA Superfund site explained.

In light of the latest revelations from the Mother Jones story today, Gasp is renewing its call for Attorney General Jeff Sessions to recuse himself from this investigation entirely.

Ask Jeff Sessions to Recuse Himself

Two powerful lobbyists. One coal company executive. One state legislator. That’s who has been indicted so far in the ongoing North Birmingham corruption investigation. The stakes of the investigation into Drummond & Balch’s pollution-enabling corruption scheme are too high to be trusted to Attorney General Jeff Sessions — a man with an indisputable conflict of interest. Send a letter to Mr. Sessions asking him to recuse himself from this matter.

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Scott Pruitt’s Shameful Ploy to Undo the Clean Power Plan

Scott Pruitt’s Shameful Ploy to Undo the Clean Power Plan

On Monday, October 9, 2017, the EPA proposed to repeal the Clean Power Plan. Once it is published in the Federal Register tomorrow there will be a 60 day public comment period. [Update: read Pruitt’s delusional press release here.] As we have before for the proposed and final rule, Gasp will be commenting. It is not only regrettable, but also disgraceful that we are commenting again, this time against repealing one of the most critical plans to address and combat climate change.

Clearly the motto of this new administration is to repeal, repeal, repeal with no thought of replacing. Where Scott Pruitt sued the EPA 14 times prior to being in charge of the EPA, I cannot say I’m shocked at this announcement. But this is conscience-shocking.

Where September of this year was the most active month on record for Atlantic hurricanes and the 10 hottest years recorded have all occurred since 1998, climate change isn’t a distant threat, it’s here. The time to act has long passed and we certainly do not have time to roll back existing regulations.

EPA estimates the Clean Power Plan will prevent up to 3,600 premature deaths and 90,000 childhood asthma attacks every year once it is fully implemented.

The message today? Meh, your health, your children’s health, they don’t matter. This administration would rather coyly and ignorantly pretend they’re unsure whether carbon is a pollutant. Such an absurd position is indefensible, especially when it’s well-known who has been buttering Scott Pruitt’s bread for a very long time.

This is a slap in the face to current and future generations. If you agree, please sign our petition for climate action!

TAKE ACTION

Federal Roundup: Recent Executive and Legislative Actions

Federal Roundup: Recent Executive and Legislative Actions

It’s been a few weeks since I updated everyone on executive and legislative actions. Sadly, this is not because there has been nothing to update; so this will be a long one! However, one reason this update is delayed is because I attended an inspiring conference two weeks ago that replenished my “hope budget” and gave me new energy to tackle the many and ever-growing attacks on clean air. Since I blogged last month, several new developments have cropped up and we have new updates:

New Developments

  • March 6, 2017: White House Announces Plan to “Close Out” Energy Star program: A spending blueprint would slash Energy Star and related programs, leaving $5 million “for the closeout or transfer of all the climate protection voluntary partnership programs.” According to our friends at ACEEE, Energy Star spend about $50 million through EPA and $7 million through the Department of Energy. According to the Obama administration, the Energy Star program saved consumers $34 billion in electricity costs and prevented more than 300 million metric tons of GHGs in one year while improving ambient air quality.
  • March 8: The HONEST Act (H.R. 1430): This proposed bill is sponsored by Lamar Smith, R-TX. The bill works “[t]o prohibit the Environmental Protection Agency from proposing, finalizing, or disseminating regulations or assessments based upon science that is not transparent or reproducible.” This bill is an attempt to revise the EPA’s scientific review process that guides their rulemaking. The bill was introduced on March 8, 2017 and passed by recorded vote in the House (228 – 194) on March 29, 2017.
  • March 13: Executive Order on a Comprehensive Plan for Reorganizing the Executive Branch: President Trump signed this Executive Order, where the stated purpose is “intended to improve the efficiency, effectiveness, and accountability of the executive branch by directing the Director of the Office of Management and Budget (Director) to propose a plan to reorganize governmental functions and eliminate unnecessary agencies (as defined in section 551(1) of title 5, United States Code), components of agencies, and agency programs.”
  • March 15: Republicans Joint Resolution on Climate Change: A group of 17 Republican members of Congress signed a resolution vowing to seek “economically viable” ways to combat global warming. It pledges to “study and address the causes and effects of measured changes to our global and regional climates” and seek ways to “balance human activities” that contribute.
  • March 17: Ozone Standards Implementation Act of 2016 (H.R. 4775). This proposed bill, sponsored by Pete Olson, R-TX, was reintroduced and aims to update to the national ozone standards, with various provisions that would change the way the Environmental Protection Agency reviews standards for particulate matter, lead and other air pollutants. The same bill failed last year and we blogged about its potential disastrous effects on air quality and public health.
  • March 21: President Trump is Not Considering a Carbon Tax: despite a meeting between Republican elder statesmen and Trump Administration officials, President Trump announced he is not considering a carbon tax.
  • March 28: Presidential Executive Order on Promoting Energy Independence and Economic Growth: President Trump signed this Executive Order. The goal is to halt the United States’ government’s attempts to curb carbon dioxide emissions with the goal of encouraging American business. We borrowed the words of our friends at NAACP on this day to express our extreme disappointment with this negligent and potentially disastrous change in course for addressing the impacts of climate change.
  • April 5: Congressional hearing on the RECLAIM Act of 2017 (H.R. 1731): At the hearing, ranking member Alan Lowenthal, D-CA, stated “[t]he idea behind the RECLAIM Act is to take part of the large unexpended balance in the [AML Fund] and devote it to projects where cleaning up mines leads to economic and community benefits. This is, quite frankly, a win-win.” There was testimony from the bill’s lead sponsor, Hal Rogers, R-KY, and three witnesses. The hearing itself was a major milestone for the RECLAIM Act.

FOLLOW UP ON ACTIONS PREVIOUSLY COVERED

  • Congressional Review Act put into play by U.S. Congress: The CRA allows senators and representatives who disapprove of a regulation to enter a resolution eliminating it. The resolutions require the signature of the president. So far this year, the following rules protecting the environment and human health have been targeted under the CRA:
  1. The Department of Interior’s Stream Protection Rule: Update: On February 16, 2017, President Donald Trump signed the repeal of the Stream Protection Rule.
  2. Department of the Interior Methane Flaring Rule: The House voted on February 3, 2017 with no action so far from the Senate as of the date of this post. Update: on March 21, 2017, some Republican lawmakers came out against using the CRA to repeal this rule. Specifically, Sen. Lindsey Graham said he believed the rule could be subject to improvement, not just cancellation. “I think we can replace it with a better reg, rather than a CRA.”
  3. Drilling and Mining on Public Lands: On January 31, 2017, the House introduced a joint resolution that would repeal the rules that allow the National Park Service to manage private drilling and mining in 40 parks across the country.

Status of Bills in U.S. Congress covered in previous posts:

Bill NumberSponsorDescriptionStatus
HR 998Jason Smith, R-MOEstablishes a commission to identify obsolete and unnecessarily burdensome regulations to be repealed. It also sets goals for the commission to reduce costs by 15 percent and to prioritize major rules that are more than 15 years old and rules that can be eliminated without diminishing effectiveness.No action since the bill passed the House on 3/1/2017.
HR 1009Paul Mitchell, R-MIRequires independent agencies to submit rules to the Office of Management and Budget before they are published—essentially giving the president tight control of the rule-making processNo action since the bill passed the House on 3/1/2017.
HR 1004Tim Walberg, R-MIWould require agencies to publish more detail of forthcoming rules and regulationsNo action since the bill passed the House on 3/2/2017.
HR 637Gary Palmer, R-ALBlocks the EPA’s ability to address climate changeNo actions taken since the bill was introduced. You can read our analysis of the bill here.
HR 861Matt Gaetz, R-FLWould abolish the EPA effective December 31, 2018No actions taken since the bill was introduced.
HR 958Sam Johnson, R-TXWould leave EPA with a budget of less than $1 billion. This bill would eliminate EPA climate change programs and would also close all of the EPA’s regional offices, halt new regulations on ground-level ozone pollution and require the agency to lease unused propertyNo actions taken since the bill was introduced.
  • February 21, 2017: Letter sent from automobile manufacturers to Scott Pruitt asking him to relax emissions requirements: The Alliance of Automobile Manufacturers sent a letter to Scott Pruitt (EPA Administrator) asking him to withdraw the Final Determination on Appropriateness of the Model Year 2022-2025 Light-Duty Vehicle Greenhouse Gas Emissions Standards under the Midterm Evaluation. Update: on March 15, 2017, President Trump announced plans to re-examine the CAFE (Corporate Average Fuel Economy) standards, taking a step back from Obama-era environmental regulations.
  • OMB Proposed Budget Cuts to EPA and NOAA: The proposed budget cuts would reduce EPA’s staff by one fifth in the first year and eliminate dozens of programs. Specifically, EPA’s staff would be slashed from 15,000 to 12,000. The proposed budget would also cut EPA’s grants to states, including air and water programs, by 30 percent and eliminate 38 separate programs in their entirety. Media outlets also discovered a four page budget memo that would slash NOAA’s budget by 17 percent, delivering steep cuts to research funding and satellite programs. Any such cuts would have to be codified through the congressional appropriations process. Update: U.S. Congress is currently in recess for the Easter holiday but are expected to consider OMB’s budget proposal upon their return.

Make sure you’re signed up to receive our e-newsletters. We send updates and action alerts about issues that could threaten air quality, public health, and the environment. We will also always provide ways for you to act on any development, whether it’s positive or negative.

EPA Makes Positive Changes to Comply with Civil Rights Act, but Uncertainty Remains

EPA Makes Positive Changes to Comply with Civil Rights Act, but Uncertainty Remains

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[1]. The Court noted that “Congress directed the thrust of [§ 703(a)(2)] to the consequences of employment practices, not simply the motivation[2].” 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[3]. A plaintiff bringing a disparate impact claim challenges practices that have a “disproportionately adverse effect on minorities[4].” 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[5]. ” 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[6].”

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.

[1] See Griggs v. Duke Power Co., 401 U.S. 424 (1971)
[2] Id. at 432 (emphasis added).
[3] See Id. and Smith v. City of Jackson, 544 U.S. 228 (2005).
[4] Ricci v. DeStefano, 557 U.S. 557, 577 (2009).
[5] Texas Dep’t of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. __ (2015).
[6] Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits (EPA, Feb. 5, 1998) at 2
SCOTUS Denies Appeal Over Embattled MATS Rule

SCOTUS Denies Appeal Over Embattled MATS Rule

On Monday, the Supreme Court of the United States denied certiorari in Michigan v. EPA. This means that SCOTUS rejected Michigan’s and 20 other states, including Alabama, appeal to block the mercury and air toxics standards (MATS). In denying review, SCOTUS upholds the D.C. Circuit’s decision to not vacate the rule.

Almost a year ago I wrote about the SCOTUS decision that resulted in EPA performing a cost analysis for the MATS rule. Because the rule was not invalidated or stayed, crucial protections for air quality and public health have remained in effect.

Mercury Pollution

Image courtesy Moms Clean Air Force (source: http://www.momscleanairforce.org/how-mercury-poisoning-works)

Mercury is a potent neurotoxin that is emitted from coal-fired power plants. It is converted by organisms in nearby water sources like streams and rivers into methylmercury, which is absorbed by fish.

This is what leads to fish advisories like the ones published by the state of Alabama Department of Public Health and our friends at the Coosa Riverkeeper. It has even been linked to lower IQs and can have harmful health effects in children.

Thank you to everyone who told Attorney General Luther Strange to stop wasting taxpayer’s money opposing MATS! Today is a great day for air quality and public health!

Check out this helpful infographic on mercury pollution from Moms Clean Air Force.

MCAF_how_mercury_poisoning_works_Page_1 MCAF_how_mercury_poisoning_works_Page_2

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