Environmental justice rules regarding coal ash are weak, says US civil rights commission
By many standards of childhood, Tracey Edwards enjoyed an idyllic country life in Walnut Cove. Growing up in rural Stokes County, she and her friends played outside, picking fresh apples, blackberries and muscadine grapes, as if their neighborhood were its own private Eden.
But in the early 1970s, Edwards told a state environmental justice advisory committee in April, Duke Energy fired up a power plant, Belews Creek. It spewed coal ash into the sky that returned to earth like snow. The ash coated the predominantly African-American neighborhood, she said, so thick, “we could write our names on the cars.” The ash powdered the rooftops. It carpeted the family garden, where in the summertime, Edwards unaware of the contaminants in the ash, would eat “hot ripened tomatoes” right off the vine.
Edwards, now 48, said that over time many residents of Walnut Cove, including herself, became sick or died — of cancer, neurological disorders, respiratory illnesses — long before their time.
“If my parents or other families living in our community had known when they sold their property to Duke Energy in the late ‘60s,” Edwards said, “the families would have made conscious decisions to move farther out, far from harm’s way.”
The environmental justice issues related to coal ash consume a large part of a new report released by the U.S. Commission on Civil Rights. In 230 painstaking pages, the federal commission lambastes the EPA’s Office of Civil Rights for “woefully failing” its legal obligations to low-income neighborhoods and communities of color. And the commission lays bare not only the EPA’s inadequacies, but also makes recommendations to minimize the damage the lack of federal action has caused in these communities.
“The EPA is practically toothless in its ability to protect the poor,” said commissioner Michael Yaki on a conference call about the report.
In several pages of EPA response, the agency wrote that the commission’s report contains “unsupported and sweeping generalizations at EPA.”
As they relate to coal ash, the federal commission’s recommendations have major implications for environmental justice in North Carolina. If enacted by the EPA — a big if, since they aren’t legally binding — these proposals could change how North Carolina requires utilities to handle their coal ash waste. Add to the mix possible congressional action, and the regulatory system, both state and federal, could be upended. (See sidebar).
If the EPA doesn’t follow the commission’s guidelines, the failure to act could continue to harm vulnerable communities. In Walnut Cove and Roxboro, in Cleveland County and Gaston County – and beyond – thousands of residents in North Carolina are grappling with health issues and lower property values because of coal ash near their neighborhoods and chemicals in their drinking water.
“The issue is one of urgency,” said Civil Rights Commissioner Martin Castro during a conference call last week. “It affects people’s daily lives.”
The EPA’s charge to protect low-income neighborhoods and communities of color from disproportionate environmental damage is required by Title VI of the Civil Rights Act of 1964. Recipients of federal funds, such as the NC Department of Environmental Quality, must adhere to Title VI in order to continue getting money. The federal government’s environmental justice obligations are further cemented by a 1994 executive order signed by then-President Bill Clinton.
Since its inception 23 years ago, the EPA’s Office of Civil Rights has received about 300 complaints alleging environmental discrimination. Yet of those, the EPA has never made a formal finding of discrimination — not one. And the agency has never withdrawn or denied money to any of its 1,000 to 2,000 funding recipients.
The EPA routinely blows deadlines, not by days or weeks, but by years. In 2006–2007, it failed to process a single complaint. One case in California took 17 years, only for the EPA to issue a letter of dismissal.
More recently, in North Carolina, Earthjustice filed a Title VI complaint against NC DEQ. The nonprofit law firm alleged DEQ intimidated African-Americans by inviting pork industry representatives to a confidential mediation session between state regulators and community members affected by hog farms. There’s little confidence that the EPA will address the complaint in the required six months.
“The EPA does not take action when faced with environmental justice concerns until forced to do so,” said Castro, the civil rights commission chairman. “When they do act, they make easy choices and outsource any environmental justice responsibilities onto others.”
As they pertain to coal ash, these federal failures flow downstream to vulnerable communities near disposal ponds and landfills. The extent of the problem is enormous: Power plants generate 140 million tons of coal ash waste every year, which is stored at 1,425 sites in 47 states, including North Carolina.
According to the federal commission’s report, of the 22 power plants in North Carolina (eight of them owned by other utilities than Duke Energy), more than half are located in ZIP codes where the percentage of people living below the poverty level is greater than the state average. Eleven of these ZIP codes have a disproportionate percentage of minorities as compared to the state overall. (Often the two groups overlap.)
Minorities make up more than half the people living near the two Roxboro plants and their coal ash impoundments— above the statewide average of 36 percent, And at the Buck site near Salisbury, 18 percent of residents in that ZIP code live in poverty, slightly above the 17 percent for North Carolina as a whole.
ZIP codes encompass a larger area than census tracts, which are often used as a fine-grained way to analyze the socio-economic makeup of communities.
Residents in these affected communities can’t afford to hire scientists and lawyers to help build their legal case, even though the EPA’s own coal ash rules place the burden on the communities — not even the states — to enforce the law. This is usually done through citizen lawsuits, which can cost upward of $15,000.
“There clearly has to be a mechanism by which communities can get help,” said Amy Adams, state campaign coordinator for Appalachian Voices, an environmental nonprofit group. She also worked for DEQ for 10 years, but left, disillusioned, in 2014. “What we’ve seen is that not only are they dealing with the health concerns of contamination in their water supply, but also the mental component of not knowing if the water is safe, especially folks who have children in the home.”
Shelton Bass lives 50 feet from the property line of an abandoned mine in Lee County, where Duke Energy is dumping tons of its coal ash, even against the wishes of local officials. “I can’t live where I can’t grow my food and my animals and raise my children,” he told the state environmental justice advisory committee this spring.
Nor can Bass and his advocacy group Environment Lee afford high-profile attorneys to take their battle to court. “How many barbecue plates did I have to sell to raise money for a lawyer for our little group to fight Duke Energy?”
By law, DEQ is allowed to determine the radius for private well-testing. (DEQ reviews the results, but does not have the staff to conduct the testing.) That distance started at 1,000 feet from coal ash ponds and landfills and then expanded to 1,500 feet, under the Coal Ash Management Act. However that requirement could change. The federal commission recommended that the EPA test all private wells within a mile of those impoundments.
“A one-mile radius has pretty big implications for North Carolina,” said Katie Hicks, associate director of Clean Water for North Carolina.
The one-mile guidance aligns with what many residents have suspected: This summer, test results that showed six private wells were contaminated, even though they were nearly a mile from the Cliffside Steam Station in Cleveland County. The contaminant was Chromium 6, which is found in coal ash.
Duke Energy spokesman Sean Walsh told Policy Watch that “there is no evidence our operations are impacting neighbors’ water or health.” However, he said, the utility will provide permanent alternative water supplies to everyone within a half-mile of coal ash basins by October 2018, as required by state law. “We are hopeful that the availability of this alternative will provide peace of mind.”
Federal rules say that environmental justice reviews should be done within a one-mile radius from ponds and landfills, as well as a “catchment area.” That is defined as an area where runoff can travel downstream within 24 hours. However, several federal commission members recommended reviews be conducted within a three-mile radius of impoundments.
DEQ is conducting environmental justice reviews based on census data within at least one mile of all of the proposed landfills at the Duke Energy plants. The agency has completed two reviews, one at Sutton in New Hanover County and the other at Dan River in Rockingham County.
DEQ compared the demographics of the census tracts to those of the entire county. State officials also visited the communities and concluded that the landfills would not disproportionately affect minorities or low-income communities near either site. Disproportionate is defined as impacts in communities with more than 50 percent minorities or 10 percentage points above the county average. For poverty, that figure is 5 percentage points above the county average.
In some cases, DEQ studies impacts beyond the one-mile boundary. “It’s not a hard line,” said Sarah Rice, the department’s environmental justice coordinator. At Sutton, no one lives within a mile of the site because it encompasses the entire area. The mayors of Wilmington and Navassa both asked DEQ to extend the radius to communities outside of that one-mile line, which state regulators did.
If ash is being trucked in or out of a site, transportation considerations can also prompt DEQ to change the boundary, said Michael Scott, director of DEQ’s waste management program.
The federal commission acknowledged that environmental justice conclusions can vary depending on where and how the regulators look. Comparing racial and income data to state or national benchmarks can turn up very different answers, as can examining census tracts or ZIP codes, the latter of which are larger.
Libbie Weimer studies environmental justice issues as a research associate at UNC Chapel Hill. She examined the demographics near Duke Energy’s coal-fired power plants, using three boundaries: 0.6 mile, 1.8 miles and 3 miles. Weimer found that at 11 of the 14 plants there were disproportionate impacts either based on race or income, and that vulnerable residents tended to live closer to the plants. Twenty percent of residents within three miles of the Roxboro plant are nonwhite, compared with 45 percent of those living within a half mile.
While some of the residents haven’t endured a Dan River disaster, they are chronically exposed to the environmental effects of coal-fired power plants.
“We’re hearing a different conversation about a public health crisis,” Weimer said. “The communities need to be able to frame the problem, not just react to the legislation itself.”
Those problems have serious consequences. Despite the omnipresence of coal ash, there are few formal studies about its impact on human health. Preliminary research, though, shows that people living within one mile of a coal ash pond have a 1 in 50 chance of developing some form of cancer.
Nonetheless, under the EPA’s 2014 rule (which was five years overdue) coal ash itself is considered non-hazardous waste. This designation is despite the fact that 15 of its components — arsenic, chromium, mercury and lead among them — are individually classified as hazardous waste.
That less stringent classification allows the states to implement their own rules, resulting in a nationwide patchwork of regulations, some weaker than the anemic federal ones. As “non-hazardous waste,” coal ash can be disposed in lined landfills or in some cases, abandoned mines — many of them in low-income or minority neighborhoods.
But if the ash were designated hazardous, as the civil rights commission proposes, the EPA would be responsible for oversight and enforcement of all aspects of it. The law would trigger rigorous requirements for dumping the ash, which would have to be disposed of in hazardous waste landfills.
In draft versions of the rule, the utility lobby opposed the hazardous waste provision. The EPA backed down.
Walsh, the Duke Energy spokesman, said the utility can’t speculate on the ramifications of reclassifying coal ash as hazardous waste.
That hazardous designation, though, presents its own problems in recycling coal ash, said Adams of Appalachian Voices. And for that reason, she and the commission recommend classifying the ash as “special waste,” under the hazardous category, as the EPA had proposed as far back as 1978.
“It’s a Catch-22,” Adams said of the hazardous designation. “It’s good for purposes of not storing the ash in unlined open pits, but then it limits what we could do in terms of recycling it. There is a conflict between calling it what it is— a hazardous waste — but not shortcutting the possibilities of recycling and true beneficial reuse. Then we can use coal ash to our advantage instead of leaving it in our communities.”
EPA’s coal ash rule is intended to set minimum environmental and human health standards for the states to follow. However, Adams said, many states “treat the federal rules as a ceiling when they’re supposed to be a floor. They’re not meant to be something to strive for.”
On the whole, North Carolina’s Coal Ash Management Act, which became law two years ago today, was more stringent than the EPA rules. But House Bill 630, which passed this year and was signed by Gov. McCrory, rolled back many of those protections. For example, the legislation allowed DEQ to lower the risk level of half of Duke’s 33 coal ash impoundments from intermediate to low, as long as Duke extends permanent water lines to nearby residents and fixes any dam deficiencies. It eliminated the coal ash management commission, which was tasked with oversight. And it forbids local governments, which arguably know their communities best, from stringently regulating coal ash.
Because of HB 630, some parts of North Carolina’s coal ash law are now weaker than federal regulations.
Congress also could have a say in how coal ash is regulated. So far, federal lawmakers have largely left rule-making up to the EPA, part of the executive branch of government. But now, the legislative branch could wrest some of that power away. While no branch of government is immune from political influence, Congress is especially fertile ground for powerful special interest groups, such as utilities.
This month, Senate Bill 2848, which gives states control over coal ash disposal rules, passed and now goes to the House. Both North Carolina senators, Republicans Thom Tillis and Richard Burr voted for the bill.
Last year, House Resolution 1734 would have weakened coal ash rules nationwide regarding groundwater monitoring, closure requirements and the siting of landfills. And the EPA would have been stripped of its rule making authority, leaving future regulations to be enacted by Congress. It passed the House — all North Carolina Democratic members voted against it — but the measure hasn’t moved in the Senate.
U.S. Rep. G.K. Butterfield, a Democrat representing North Carolina’s First District, voted against HR 1734 because it lacked adequate protections. But before the final vote, he proposed an amendment to address environmental justice concerns and return some oversight power to the EPA.
“Low-income and minority communities located near coal ash impoundments deserve to trust the safety of their water and environment,” Butterfield told Policy Watch in an email.
The federal commission sent its report to President Obama, the EPA and the House and Senate leadership. “Hopefully the EPA can use this report to go to Congress and ask for the resources it needs,” commissioner Castro said.
Meanwhile, the communities near the coal ash impoundments are asking for environmental justice, although the people and places that are dear to them cannot be reclaimed.
“This question of what is justice, what has been lost here? Lives have been lost, and we can’t bring them back. We can’t make this land as it was before Duke Energy came here,” Sarah Kellogg, then the Appalachian Voices field coordinator, told the state environmental justice advisory committee earlier this year. “The people who have been most oppressed are in the best position to shed light on what justice would look like for them.”