Toxic Birmingham: Power, Pollution and Corruption

by Feb 15, 2019


Media Inquiries: Please contact Michael Hansen, Executive Director, at 205-701-4270 or [email protected]


Note: This is a living story. We will update this article periodically with new information, additional context, and more links as we discover them — and find the time!

INTRODUCTION

In 2009 the U.S. Environmental Protection Agency (EPA) began the process of screening for air toxics — pollutants that cause or may cause cancer or other serious health effects — around public schools. As a part of this national survey, the EPA conducted air sampling at three schools in the northern Birmingham area. The data showed elevated levels of these hazardous air pollutants. The EPA and the Jefferson County Department of Health (JCDH) subsequently conducted a longer-term air toxics study in the neighborhoods of Fairmont, Collegeville, Harriman Park, and North Birmingham. According to the EPA, the air quality levels were at the high end of the “acceptable” range for air toxics.

Air toxics have for years been a concern in the northern Birmingham communities. According to the Agency for Toxic Substances and Disease Registry (ATSDR), air samples were collected around the communities by the EPA and JCDH at various points from 2005–2012. Various conclusions have been reached for different pollutants, including, but not limited to:

  • Air quality levels were at the high end of the “acceptable” range, and occasionally exceeded that range for air toxics.
  • Past and current exposures to particulate matter in northern Birmingham could affect the health of sensitive individuals (e.g., children, seniors, pregnant women, and people with asthma, chronic obstructive pulmonary disease, and cardiovascular disease).

In summer of 2009, the EPA also oversaw soil sampling in those neighborhoods — including at the Hudson K-8 School. They found high levels of polycyclic aromatic hydrocarbons (PAHs) and arsenic, among other toxic contaminants. As al.com reported at the time: “By the time the results of unacceptable levels of potentially toxic contaminants came back, the old school had been demolished and a new $14.5 million Hudson School had been built. Since the site had been disturbed during construction, soil was tested again in August 2010, and showed lesser, but still unacceptable, levels of contamination.”

In August 2011, CBS 42 aired “Deadly Deception” (above) an hour-long investigative report that exposed the public health crisis in those communities. The documentary prompted additional EPA testing and created a cry for help from residents. The EPA ultimately used authorities under Superfund (part of a federal law that makes available funding) to assess properties in the four aforementioned communities for the possible soil and water pollution. In 2012, the EPA began testing more than 1,200 properties for contamination and removing and replacing soil that exceeded levels for hazardous pollutants like lead, arsenic, and polyaromatic hydrocarbons (PAHs). This project is what became known as the “35th Avenue Superfund Site.” In 2013, the EPA identified five potentially responsible parties (PRP): Alagasco, KMAC Services, U.S. Pipe & Foundry, Walter Coke (now ERP Coke) and Drummond Company (ABC Coke).

GASP WEIGHS IN

Since the organization was founded in 2009, Gasp has been advocating for stronger air pollution enforcement on behalf of members and alongside residents of the northern Birmingham communities. In particular, we have been working with community members and leaders to address the historic and ongoing toxic contamination from two coking plants: ABC Coke (owned by Drummond Company) and ERP Compliant Coke (formerly Walter Coke).

Gasp commented on both plants’ Title V permits in 2014 (embedded below). We urged JCDH to reject the permit applications and make the permits more restrictive of emissions. When JCDH proceeded with granting the permit anyway, we petitioned EPA to reject them. They did not, but EPA did offer some very helpful analysis of our request in doing so.

ABC Coke Permit Comments (2014)

Walter Coke Permit Comments (2014)

GASP v. BOARD OF HEALTH

The Department of Health mostly ignored our comments on ABC Coke’s permit in 2014 — not to mention the hundreds of residents who testified about the soot accumulating on their home and property; how their health was impacted by the pollution; and how they are concerned for their children’s health. As a result, we filed a request for a hearing with the Jefferson County Board of Health, the body that oversees the Department. The Board of Health denied our request for a hearing in dramatic fashion — having security escort our attorney out of the room. 

We took the Board of Health to court, arguing that we had a right to a hearing according to the relevant rules and regulations, resulting in a victory in the Jefferson County Circuit Court, the Alabama Court of Civil Appeals, and eventually  at the Alabama Supreme Court. That matter was technically never resolved, partly because Drummond Company applied for a permit renewal for ABC Coke in the summer of 2018 (more than a year prior to its existing permit’s expiration date).

We took the same action on the Walter Coke permit, but that case was dropped because Walter Energy filed for bankruptcy.

TOXIC CITY: BIRMINGHAM’S DIRTY SECRET

On June 12, 2014, we premiered Toxic City Birmingham’s Dirty Secret, a 26-minute documentary about the environmental justice issues facing North Birmingham at Carver Theatre. The film highlights the real-life stories and the suffering of residents living around the heavy industrial plants throughout northern Birmingham area, including Tarrant (where ABC Coke is located).

Simultaneously, during the summer of 2014, we asked the EPA to look into the possibility that there may also be contamination issues and air pollution problems in nearby Tarrant. The EPA granted our request and conducted a Preliminary Assessment, or PA, which was completed on June 29, 2015. The PA, using existing evidence and documentation, found enough evidence to justify further investigation. (That site became known as the “Pinson Valley Site,” which included Tarrant as well as the Inglenook neighborhood of Birmingham immediately to the south.) The next step after the PA was to conduct a Site Inspection (SI), which involved the EPA working with the Alabama Department of Environmental Management to gain access to properties in the Pinson Valley Site area to collect soil samples and test for pollutants (like those they tested for in northern Birmingham). In July 2016, the EPA concluded that the SI results did not warrant further action.

In September 2014, the EPA announced that it was proposing to add the 35th Avenue Site to the National Priorities List (NPL). This move would bring in Superfund money to finance long-term remediation. Under NPL, EPA can also require the potentially responsible parties to help pay for the cleanup. Gasp organized in support of this effort, as the additional funding could go a long way towards community restoration and revitalization — and holding polluters accountable for their mess is a core value for our organization. We proposed a resolution of support of NPL to Birmingham City Council members William Parker (District 4) and Steven Hoyt (District 8). We reached out to Birmingham Mayor William Bell and asked him to support the proposed resolution and to come out publicly in support of the NPL proposal. To our knowledge (based on what is available in the public record via the Federal Register and open records requests), neither the city council nor the mayor’s office ever officially supported (or opposed) the NPL listing proposal. Gasp submitted formal comments to EPA in support of adding the site to the NPL.

During this same period in 2014, we wrote to Beverly Bannister at EPA asking for the agency to take further action on air monitoring in the north Birmingham area. In particular, we requested “air monitoring of both ambient air quality and fugitive emissions from Drummond’s ABC Coke plant and Walter Energy’s Walter Coke plant utilizing the Differential Absorption Lidar system referred to as DIAL.” That method was used at the Tonawanda Coke plant in Tonawanda, NY, and resulted in legal actions being taken due to significant discrepancies between reported benzene emissions and actual emissions. It was also discussed in Toxic City.

CIVIL RIGHTS ACT COMPLAINT

Our analysis of the depth and breadth of the problem(s) facing the neighborhoods and residents in North Birmingham and Tarrant leads us to the inevitable conclusion that our work cannot be limited to air permits and other wonky (but important) regulatory actions. That is why, using every tool in the toolbox, we worked with David A. Ludder to file two Title VI complaints against the Jefferson County Department of Health, one each for the issuance of the ABC Coke and Walter Coke permits.  Title VI is a provision of the Civil Rights Act of 1964 that forbids recipients of federal funds from discriminating on the basis of race, color, and national origin.

The complaint, filed on behalf of several Gasp members, alleged that the health department did not consider the disparate impact of toxic air pollution on overwhelmingly African-American communities when it granted pollution permits to the two facilities. (Disparate impact in this context is a term that refers to something that, while it seems neutral on its face, adversely effects a protected class of people more than another.) 

On June 26, 2017, we submitted several suggestions to the EPA Office of Civil Rights detailing recommendations for how to resolve the complaint. Our proposal included suggestions for: enhanced monitoring, control of odors, control of particulate matter, reduction of air toxics, and dramatically improved public notice and participation.

The EPA on July 2, 2019 entered into an informal resolution agreement (IRA) with the Health Department. In the settlement, we got a few of the things we asked for (such as enhanced digital public notice) but were denied some of our more serious requests, like additional air monitoring and more in-depth analysis of permits issued in environmental justice communities.

THE DISINFORMATION CAMPAIGN

While Gasp worked with community members to activate grassroots and grasstops support for listing the 35th Avenue site on the NPL and EPA expanding its study area to the Pinson Valley Neighborhood Site, opposition began to surface as well. Because we have been actively involved in these communities and working alongside leaders, we have been privy to and engaged in almost every twist and turn involved in bringing much-needed relief to these communities. Gasp and our members are some of the few people not surprised at the public corruption that all but put a stop to the communities’ ability to receive relief from Superfund. Those corrupt tactics also thwarted EPA’s effort to perform a meaningful and thorough investigation into potential contamination in Tarrant and Inglenook.

One question we hear all the time, in light of the indictments and convictions, is “why did Drummond care so much about the possible NPL designation and the investigation in Tarrant?” Well, it’s pretty simple: Drummond would be liable for millions of dollars of clean-up costs if the NPL listing went through or if the investigation into Tarrant showed significant contamination.

How did the conspiracy work? Drummond Company hired Birmingham law firm Balch & Bingham, LLP to represent them on matters related to its ABC Coke plant and the EPA cleanup activities in the northern Birmingham area. Once the EPA proposed adding the 35th Avenue Site to the National Priorities List and granted our petition for a preliminary assessment in the adjacent area, the Drummond campaign went into high gear.

Balch signed a contract with then-State Rep. Oliver Robinson (District 58) to use his influence as an elected official to help stop the EPA from listing the 35th Avenue Site on the NPL and from investigating pollution in Tarrant and Inglenook. He was being paid via his nonprofit charitable organization, the Oliver Robinson Foundation, by a sham nonprofit, “the Alliance for Jobs and the Economy,” set up by Drummond Company specifically for this anti-EPA campaign.

On December 23, 2014, Robinson recorded a private meeting between him, former Gasp Executive Director Dr. Stacie Propst, and Gasp Staff Attorney Haley Lewis discussing the EPA’s NPL proposal. He then gave a presentation to the Alabama Environmental Management Commission in January 2015 asking the AEMC to maintain its opposition to the NPL proposal. (Dr. Propst had given a presentation to the AEMC earlier in December 2014 asking the Commission to direct Lance LeFleur, director of the Alabama Department of Environmental Management, to reverse ADEM’s position and support the NPL proposal.) 

The two lead attorneys at Balch & Bingham for this work on behalf of Drummond were Joel Iverson Gilbert and Steven George McKinney. They worked alongside Drummond Vice President of Governmental Affairs David Lynn Roberson. In addition to hiring Robinson to use his influence as a lawmaker, they also worked with SE+C (part of Strada Professional Services), a firm owned in part by Scott Phillips and Trey Glenn. They brought in several influential community members like Catrena Norris Carter, Hezekiah Jackson, and John Powe to assist with “community outreach” work. Amanda Robinson, daughter of Oliver, set up a phony community group called “Get Smart Tarrant,” which urged residents in Tarrant and Inglenook not to let EPA test their soil. Hezekiah Jackson went so far as to coordinate a “coat drive” — offering people who sat through a Get Smart Tarrant presentation a gift card to Burlington Coat Factory.

Bill Canary, the ousted former president and CEO of the Business Council of Alabama, published a series of embarrassing op-eds in multiple media outlets across the state of Alabama in 2015. BCA is a “statewide business advocacy organization and the exclusive representative in Alabama to the National Association of Manufacturers and the U.S. Chamber of Commerce.” Members of BCA include major polluters like Alabama Power and Drummond Company. While it’s unclear whether or not he had an official role in the campaign, Canary was and BCA is an industry front group and ally of Drummond Company. 

Gilbert, McKinney and Roberson were indicted on September 28, 2017 for several corruption charges, including conspiracy, bribery, honest services wire fraud, and money laundering. McKinney’s charges were eventually dropped during trial.
Robinson was indicted on charges of conspiracy, bribery, honest services wire fraud, three other counts of wire fraud, and tax evasion.

US Attorney Jay Town said at the time of the indictments, “This is the worse type of public corruption. It was all done with the greed of a few and at the expense of so many families and children living in potentially toxic areas. It’s cheaper to pay for a politician than it is to pay for an environmental cleanup.”

Robinson pleaded guilty to all charges and testified against Gilbert and Roberson in the trial. Gilbert and Roberson were found guilty and sentenced to 60 and 30 months in prison, respectively. Robinson was sentenced to 33 months.

Below are some of additional ways this highly sophisticated, well-funded disinformation campaign showed up in actions taken by local and state government agents from 2014 until very recently:

  • The Alabama Department of Environmental Management was initially supportive of the proposal with the caveat that the state wouldn’t be able to contribute its 10% share (a statutory requirement, but not a deal breaker).
  • The City of Tarrant passed a resolution in opposition to both the NPL proposal and the EPA’s Site Inspection in the area.
  • The Jefferson County Commission on October 9, 2014, passed a resolution entitled, “A Resolution to Support the City of Tarrant, Alabama, and Its Resolution in Opposition to the July 1, 2014 Petition of G.A.S.P. to theUnited States Environmental Protection Agency to Investigate andDeclare Residential Areas in the City of Tarrant to be a Superfund Site.”
  • Both houses of the Alabama Legislature passed a resolution (Senate Joint Resolution 97) sponsored by Alabama Sen. Jabo Waggoner (Vestavia Hills) opposing and condemning the EPA’s activities in northern Birmingham and Tarrant.
  • Alabama Governor Robert Bentley wrote a letter to the EPA adamantly opposing their actions.
  • Alabama Attorney General Luther Strange did the same thing, twice. It is worth noting that Strange received several objectively large campaign contributions from Drummond during the political off-season. For example, when Drummond donated $25,000 to Strange’s reelection campaign, less than a week later — on October 23, 2014 to be precise — he sent a formal letter to the EPA in which he described the NPL listing “premature” and “futile.”
  • The entire Alabama Congressional delegation except for Rep. Terri Sewell — which at the time consisted of Sen. Richard Shelby, Sen. Jeff Sessions, Rep. Bradley Byrne, Rep. Martha Roby, Rep. Robert Aderholt, Rep. Spencer Bachus, Rep. Mo Brooks and Rep. Mike Rogers — signed a joint letter to the EPA opposing its NPL proposal.

Documents Galore

We have uploaded hundreds of documents to our Scribd account. There you will find exhibits from USA v. Gilbert, emails, petitions, and other public records. Don’t see something linked in this article? Check Scribd!

CORRECTING THE RECORD

  • Gasp is a 501(c)(3) organization whose mission is to advance healthy air and environmental justice across the greater-Birmingham area through education, advocacy and collaboration. Our mission is not to shut down industry or kill jobs — anyone who says otherwise is lying.
  • Gasp has never received money (i.e., a grant) from EPA or any other government agency (i.e., JCDH or ADEM) for any purpose whatsoever. The overwhelming majority of our funding comes from individuals who live and work in Birmingham. We receive some funding from charitable foundations that support environmental work. We also receive some sponsorships from local companies.
  • Gasp petitioned the EPA to investigate pollution in the Tarrant area in 2014. We believe residents have a right to know what’s in the air they’re breathing and how air pollution is affecting other aspects of their health and the environment.
  • Gasp’s mission and focus is air quality, not soil sampling. We have never sampled anyone’s soil.
  • Gasp has never, and will never, seek to declare anyone’s property a “hazardous waste site.” We do, however, work alongs