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Pulse of the Planet
The Search for Environmental Justice in Perry County, Alabama
by GREGORY V. BUTTON

The Tennessee Valley Authority (TVA), the nation’s largest public utility, has recently gained approval from the EPA to ship three millions of tons coal ash waste, from the December 2008 Kingston Fossil Fuel Plant ash spill disaster in Kingston TN to Perry County, Alabama. The TVA is now shipping ash coal waste that contains significant levels of 14 toxic substances including arsenic, lead, mercury selenium and radioactive elements to a private waste site owned by Perry County Associates. This move has generated considerable controversy. Why? For reasons I will explain later, largely because it appears to be a blatant case of environmental injustice.

First, you need to know more about Perry County. Situated in the heart of our nation’s "Black Belt" it is the second poorest county in Alabama. Unemployment is around 17 percent. The median income of its residents is around $24,000 and approximately a third of the county lives below the poverty level. Added to that is the fact that 70% of the county is black.

Now, here is the rub, the majority of the county’s politicians are black including the county commissioners who endorsed the idea. The politicians claim that they have backed the idea because it will bring more employment to the county. They claim the waste will bring $4 million dollars in fees to the county and create as many as 50 jobs to a county whose population is 10,6000 people. In an Associated Press story (AP) (7/02/09) Michael Churchman, executive director of the Alabama Environmental Council stated:
"We still feel that there are elements that seem like an injustice to the people of Perry County," said "The benefits of the new jobs and increased income to families in that county is not as significant as it’s being portrayed to be."

Even if you accept the county commissioners’ rationale it clearly underscores the asymmetrical economic power relations of this nation and demonstrates just how desperate a poor, southern minority county is in today’s America. The more affluent State of Pennsylvania has refused a request a TVA request to ship the waste to their state because they deemed the waste hazardous. The Tuscaloosa News has published an editorial objecting to the "toxic dumping" and among other things stating that, "the money is fleeting and the job-lasting about a year. The waste and its impact are on the environment forever"

In a recent meeting last month in Roane County TN, Anda Ray, TVA Senior Vice President of the Office of the Environment, justified the decision in part by saying the county residents endorsed the idea. She then, somewhat adroitly, amended the statement-"mid-stream"- with the caveat that the locally elected officials were the ones that did so and not the county’s residents leaving the impression with many in the audience that the citizens of Perry County endorsed the idea.

It would seem from the reports in the press and discussions with Perry County residents that the decision is highly unpopular among some, if not many. A number of people have argued that the risks greatly exceed any potential benefit. For instance, an AP story recently reported that the district attorney for the county, Michael Jackson, is "vehemently" opposed to the idea and has stated that the decision by local politicians was: tragic and shortsighted." Congressman, Arthur Davis, who represents the county, and who intends to run for governor of Alabama, is also strongly opposed to the ash fill landfill.

Which brings us back to why this appears to be a prima facie case of environmental justice. Let’s be very clear about this, according to Presidential Executive Order 12898 (1994) and the EPA’s website:

Environmental justice is for the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. Fair treatment means that no group of people should bear a disproportionate risk share of negative environmental consequences resulting from industrial, governmental, or commercial operations or policies. Meaningful involvement means (1) that people have an opportunity to participate in decisions and activities that may affect their environment and/or health; (2) the public’s contribution can influence the regulatory agency’s decision; (3) their concerns will be considered in the decision making process; (4) the decision makers seek out and facilitate the involvement of those potentially effected (emphasis theirs).

First of all, according to reports in the press and statements made by numerous individuals in the community, a meaningful process involving the community members, and not just a select group of elected officials, has not taken place. Moreover, the statutes that the EPA implements require the agency to consider a host of factors including public health, cumulative impacts; social costs, and welfare impacts. And then there is the fact that, under the Toxics Substances Control Act (TSCA) it explicitly directs EPA to target low-income and minority populations for assistance and to consider such vulnerable populations in setting standards.

Finally, there is no evidence to the contrary that any of the above stated procedures listed on the EPA website have been implemented let alone taken into consideration. The fact that the county commissioners are also a minority population does not absolve them, or the EPA, from insuring that the county’s residents have an opportunity to participate in the decisions that may disproportionately affect them. As Lisa Evans, an attorney for Earthjustice has argued, regardless of race, the decision to allow the dumping of TVA waste in Perry County adversely affects all low-income residents in the county: an outcome that pertains directly to federal environmental justice policy concerns.

In responding to criticisms of institutional racism, TVA, Peyton T. Hairston, TVA’s Vice-President for Corporate Responsibility and Diversity, spokesperson, according to the publication, Facing South, stated that TVA made the decision to ship the waste to Perry County for reasons other than the racial composition of the community. Another TVA spokesperson has repeatedly stated to the press that the primary reason the Perry County waste site was chosen is because it is accessible by railroad. While this may be true, a basic precept of environmental justice rightly contends that regardless of intent, the impact is the same: a poor minority suffers a disproportionate risk regardless of the rationale for such a decision.

In 2006, during the Bush Administration, the US EPA’s Office of Inspector General conducted an evaluation report and found "that EPA senior management has not sufficiently directed program and regional offices to conduct justice reviews in accordance with Executive Order 12898. (Report No. 2006-P-00034, September 18, 2006). More recently, earlier this month, a coalition of environmental justice leaders led by Robert Bullard, log-time environmental justice advocate, have urged the Obama administration to enforce stricter standards in regard to environmental waste.

So here is the question: what has the EPA done to improve this situation under the new Obama administration? Specifically, has the EPA’s Office of Environmental Justice taken appropriate action in the case of Perry County? What exactly have they done? How transparent has their decision making process been? If they have reviewed and approved the sitting of this waste what is their rationale for such a decision?

As one elderly, back resident of Perry County, stated, "If we can’t get environmental justice enforced under the administration of a black president than we ain’t never going to get any justice!"

President Obama might want to consider that halting the dumping of toxic waste in Perry County might well be one of those "defining moments" he spoke so eloquently of during his campaign for President.

GREGORY V. BUTTON is a professor at the University of Tennessee, Knoxville. As a Congressional Fellow working in the late Senator Paul Wellstone’s (D-Minn) office he wrote the Senate Amendment to create the office of Environmental Justice (S. AMDT 338 to Amend S. 171). The language used in President’s Clinton’s Executive Order 12898 was based on this legislation. He can be reached at: gregoryvbutton@mac.com

For more information please see Sue Sturgis’s excellent reports for Facing South:

* Dumping in Dixie: TVA sends toxic coal ash to poor black communities in Georgia and Alabama"

* "Decision to dump TVA’s spilled coal waste in Alabama community sparks resistance"

* "Pa. rejected TVA’s spilled coal ash as too contaminated"