ALASKA

CALIFORNIA

NORTHWEST

FLORIDA

MID-PACIFIC

ROCKY MOUNTAIN

NORTHEAST

WASHINGTON, D.C.

NORTHERN ROCKIES
INTERNATI ONAL

STATEMENT OF MARIANNE L. ENGELMAN LADO
SENIOR STAFF ATTORNEY
EARTHJUSTICE
SUBMITTED TO THE
U.S. COMMISSION ON CIVIL RIGHTS

TOPIC: COAL ASH POLLUTION AND CIVIL RIGHTS COMPLIANCE &
ENFORCEMENT
BRIEFING ON CIVIL RIGHTS COMPLIANCE AND ENFORCEMENT IN THE
ENVIRONMENTAL JUSTICE CONTEXT AND, PARTICULARLY, CIVIL RIGHTS
COMPLIANCE AND ENFORCEMENT IN UNIONTOWN, ALABAMA, THE SITE OF
ARROWHEAD LANDFILL

JANUARY 22, 2016

NORTHEAST
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 INTRODUCTION
On behalf of myself, Earthjustice, and the communities and organizations we represent and with
whom we partner, I want to thank the U.S. Commission on Civil Rights (“the Commission”) for
investigating possible civil rights violations relating to environmental justice in low-income communities
of color through its annual enforcement report. Issues of environmental justice – including the impact of
living in communities where people are exposed to multiple sources of pollution – should be higher on
the national consciousness and national agenda. Every day decisions are made by local and state
governments and private actors to build, expand, locate, or grant permits to facilities, and over time these
decisions, cumulatively, have resulted in the gross maldistribution of health hazards on the basis of race
and ethnicity. See Paul Mohai & Robin Saha, Which Came First, People or Pollution? Assessing the
Disparate Siting and Post-Siting Demographic Change Hypotheses of Environmental Injustice, 10
Environ. Res. Letters 1, 16 (2015) (rather than hazardous waste facilities attracting people of color,
findings support hypothesis that hazardous waste facilities are more likely to be sited in communities of
color), Exhibit 1. When we say “Black Lives Matter” in 2016, and if we hope to address racial and ethnic
disparities in health status and life expectancy, our vision for change must include a radical shift in the
spatial distribution of health hazards, access to parks and other health infrastructure, and civil rights
compliance and enforcement in the environmental context. See Charles Margulis, Black Lives Matter &
Environmental Justice, Ctr. for Envtl. Health Blog (Jan. 26, 2015) (discussing of relationship between
Black Lives Matter movement and environmental justice); Elizabeth C. Yeampierre, Hurricane Katrina
Proved That If Black Lives Matter, So Must Climate Justice, The Guardian, Aug. 24, 2015,
http://www.theguardian.com/us-news/commentisfree/2015/aug/24/hurricane-katrina-black-lives-matterclimate-justice (Black Lives Matter and environmental justice movements are complementary).
In 2003, in the wake of the Supreme Court’s decision in Alexander v. Sandoval, 532 U.S 275
(2001), the Commission investigated the implementation of Executive Order No. 12,898, 59 Fed. Reg.
7629 (Feb. 11, 1994), at § 1-101, and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq., as tools

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 for achieving environmental justice and found that the U.S. Environmental Protection Agency (“EPA”)
and the other four federal agencies had not fully implemented the Executive Order and Title VI in the
environmental decision-making context. U.S. Comm’n on Civil Rights, Not in My Backyard: Executive
Order 12,898 and Title VI as Tools for Achieving Environmental Justice 9 (2003) (“Not in My
Backyard”). The Commission’s report focused on the need for reform:

Federal agencies must more fully integrate environmental justice into their core missions
and put in place evaluation criteria and accountability measures to assess policies and
programs. Without more concerted effort on the part of federal agencies to promote and
ensure environmental justice, and appropriate congressional action, minority and lowincome communities all across this nation will continue to bear the unfair risk of
exposure to environmental hazards.
Id. at 9. Unfortunately, more than a decade later, civil rights enforcement in the environmental justice
context remains on the periphery of federal agency action and low-income communities of color continue
to bear a disproportionate burden of exposure to environmental hazards.
My colleague Lisa Evans submitted testimony on the impacts of coal ash, the toxic waste
produced by coal burning power plants, and the failure of the EPA to enact a strong and protective federal
rule for the disposal of coal ash. I incorporate by reference her testimony and strongly support her
recommendations to address the risks coal ash poses to low-income communities of color and, also, to
strengthen consideration of environmental justice in rulemaking. My remarks will focus on civil rights
compliance and enforcement and offer recommendations to improve EPA’s Title VI program. Reform of
EPA’s Title VI Program is long overdue: more than 50 years after the Civil Rights Act of 1964, more
than 30 years after protesters in Warren County, North Carolina resisted the arrival of trucks laden with
polychlorinated biphenyls (“PCBs”), thereby launching the Environmental Justice Movement, more than
20 years after President Clinton signed Executive Order 12,898, and more than 10 years after the Supreme
Court issued its decision in Alexander v. Sandoval and the Commission published Not in My Backyard,
there is no excuse for EPA’s failure to enforce Title VI.

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 COAL ASH, CIVIL RIGHTS, AND THE IMPACT OF ENVIRONMENTAL DECISIONMAKING ON RESIDENTS OF UNIONTOWN, ALABAMA
By way of background, I am a senior staff attorney at Earthjustice, a non-profit environmental
law firm that fights for the right of all people to a healthy environment. Our multiple offices across the
country take on critical environmental issues to preserve wildlife and wild places, promote clean energy
and a healthy climate, and protect healthy communities. See Earthjustice, http://www.earthjustice.org
(last visited Jan. 13, 2016). Before joining Earthjustice more than five years ago, I worked as a staff
attorney at the NAACP Legal Defense & Educational Fund, Inc. (“LDF”), and as General Counsel of
New York Lawyers for the Public Interest (“NYLPI”). My practice at both LDF and NYLPI included
representing clients enforcing Title VI of the Civil Rights Act of 1964, both administratively on state and
federal levels and, before Sandoval, in federal court. See Marianne Engelman Lado, Curriculum Vitae
(2015), Exhibit 2. Currently, my colleagues at Earthjustice and I represent complainants in two
administrative complaints filed under Title VI of the Civil Rights Act of 1964 with EPA. We also
represent five community-based organizations that filed civil rights complaints with EPA between 1992
and 2005. EPA accepted each complaint for investigation more than a decade ago but has failed to make
preliminary findings or issue any recommendations in a reasonable time period. See 40 C.F.R. §7.115(c)
(180-day regulatory deadline for issuing preliminary findings). Each complaint remains open to this day,
with no resolution or relief for community residents. See First Amended Complaint for Declaratory and
Injunctive Relief, CAlifornians for Renewable Energy v. U.S. Envtl. Prot. Agency (N.D. Cal. Jan. 7,
2016) (Case No. 4:15-cv-03292), Exhibit 3.
We have the honor of representing Esther Calhoun and other residents of Uniontown who filed a
complaint in 2013 against the Alabama Department of Environmental Management (“ADEM”) alleging
that ADEM violated Title VI and EPA’s implementing regulations by reissuing and modifying a Solid
Waste Disposal Facility Permit authorizing the construction and operation of Arrowhead Landfill (the

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 “Landfill”) without adequate protections for the health and welfare of the community.1 Over and over
we’ve heard the question that Ms. Calhoun asked in her testimony: why was coal ash, with its
carcinogens, neurotoxins, and poisons—with arsenic, boron, cadmium, hexavalent chromium, lead,
mercury, selenium and thallium— why was coal ash considered hazardous for purposes of the cleanup in
the predominantly middle class white community in Kingston, Tennessee but not in 87% African
American Uniontown, Alabama? As lawyers, we can provide a range of technical responses, but the
question lays bare the reality for the many low-income communities of color living in the shadow of
municipal landfills. As EPA itself acknowledges, the regulations governing municipal solid waste
landfills (“MSWLFs”) are not as protective even as rules governing the disposal of coal ash in other
contexts. The coal ash rule recently finalized by EPA contains an exemption for coal combustion residual
waste (“CCR”), or coal ash, disposed at MSWLFs. See 40 CFR § 257.50(i) (“This subpart does not apply
to municipal solid waste landfills that receive CCR.”) and relies, instead, on nonbinding “expectations”
that state regulators will fill in regulatory gaps. See Hazardous and Solid Waste Management System, 80
Fed. Reg. 21, 302, 21,341-42 (Apr. 17, 2015) (codified at 40 C.F.R. pts. 257 & 261).
After the hearing, I will supplement these comments with more detail, but for the purposes of this
hearing, the experience with the disposal of coal ash at the Arrowhead Landfill illustrates two critical
weaknesses in the fabric of federal and state laws that should prevent and address racial disparities in the
distribution of health hazards and exposure to toxic substances. First, as Lisa Evans and others have
discussed, EPA failed to close loopholes and exceptions in the rules governing the disposal of coal ash,
leaving communities such as Uniontown vulnerable. Moreover, EPA’s recent rulemaking raises
questions about the consideration of environmental justice in rulemaking under Executive Order No.
12,898.
EPA failed to issue a strong rule that would address inequities in coal ash pollution despite the
mandates of the Executive Order as well as its own environmental justice analysis. Although this

1

Slides accompanying this testimony at the January 22, 2016 hearing will include both pictures of the
Arrowhead Landfill and photos of Uniontown, Alabama residents.

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 Administration has taken significant steps to finalize tools and guidance documents related to
environmental justice, see EPA, Guidance on Considering Environmental Justice During the
Development of Regulatory Actions, at E-2 (2015), available at
http://www.epa.gov/environmentaljustice/resources/policy/considering-ej-in- rulemaking-guide-final.pdf,
implementation of Executive Order 12,898 requires both truly meaningful participation and input
throughout the process as well as a commitment to achieving strong substantive outcomes to benefit
communities. EPA must consider and evaluate the results of the final rule, according to metrics of actual
environmental health protections achieved, pollution reduced, and monitoring and enforceability
mechanisms strengthened to determine whether or not the rule has actually achieved environmental
justice objectives in a rulemaking.
The second obvious question raised by the Uniontown experience is why coal ash from the
Kingston, Tennessee disaster was moved across state lines to Uniontown and piled directly across the
road from people’s homes. And once that decision was made, why officials in the public and private
sector didn’t take steps to ensure that the strongest possible protections were in place – including the
strongest standards for liners, the leachate system and leachate disposal, monitoring, public information, a
fugitive dust control plan and suggested control measures, procedures to log citizen complaints about
fugitive dust, baseline testing, control of public access and disease vectors, weekly and annual landfill
inspections, groundwater monitoring, well casements, reporting detection of constituents above
groundwater protection standards, analysis of corrective measures, and standards for remedy selection, for
example – why weren’t such measures put into place to ensure that the health and welfare of the
community is protected?
Uniontown, Alabama has a population of approximately 1,775 people and is approximately 90%
African American. American Fact Finder, U.S. Census Bureau, Profile of General Population and
Housing Characteristics: 2010, 2010 Demographic Profile Data, Uniontown (town), Alabama,
http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=CF (enter “Uniontown”
in the search bar, click on “Uniontown town, Alabama” and click on “General Population and Housing

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 Characteristics” link under “2010 Census” in the “Population” tab). Per capita income in Uniontown is
between $9,000 and $10,000. American Fact Finder, U.S. Census Bureau, Selected Economic
Characteristics, 2010-2014 American Community Survey 5-Year Estimates,
http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=CF (enter “Uniontown”
and click on “Selected Economic Characteristics” under “2014 American Community Survey” in the
“Income” tab). Uniontown contrasts sharply with Kingston, Tennessee, the site of the Tennessee Valley
Authority’s (“TVA”) Kingston Fossil Plant, where the coal ash impoundment collapsed, releasing more
than a billion gallons of toxic sludge. 80 Fed. Reg. at 21,313, 21,457 n.219. According to U.S. Census
data, over 93% of the population in Kingston is white and the per capita income is approximately
$25,824, almost three times the per capita income of Uniontown. QuickFacts, Kingston city, Tennessee,
U.S. Census Bureau, http://www.census.gov/quickfacts/table/PST045215/4739620,00.
Uniontown became the dumping ground for millions of tons of ash recovered from the TVA
disaster in Kingston: significantly, the 4 million tons of toxic ash transported from Tennessee and
dumped in the Arrowhead Landfill in Uniontown contain dangerous levels of arsenic, lead, and other
heavy metals. See Shaila Dewan, Clash in Alabama Over Tennessee Coal Ash, N.Y. Times, Aug. 29,
2009, http://www.nytimes.com/2009/08/30/us/30ash.html. Moreover, Uniontown residents also contend
with other sources of toxic exposure and other factors that compound health risks. Any assessment of the
risk posed to community members by this municipal solid waste landfill – which is authorized to receive
15,000 tons of waste per day – as well as the specific risks associated with the disposal of toxic ash,
should have considered, in accord with the National Academy of Sciences’ recommendation, the “array of
stressors (chemical and nonchemical) to characterize … human health or ecological effects, taking
account of such factors as vulnerability and background exposure.” Comm. on Improving Risk Analysis
Approaches Used by the U.S. EPA, Nat’l Research Council, Science and Decisions: Advancing Risk
Assessment 224 (2009). This small community is already home to multiple sources of pollution, from a
dysfunctional sewage system that has been overflowing into nearby Freetown Creek and creating a stench
for years, see Order at 1, Alabama Dept. of Environmental Management v. City of Uniontown (Ala. Cir.

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 Ct. Perry Cnty. Nov. 20, 2015) (Civ. Action No. 53-cv-2012-900021.00) (Circuit Court of Perry County
awarding injunctive relief based on credible evidence documenting Uniontown’s long-term
noncompliance with its National Pollution Discharge Elimination System Permit), to the Southeastern
Cheese Plant, which sprays its waste over fields, compounding the smell and impact on surface waters,
and which has also discharged waste into area waters. See Consent Order No. XX-XXX-CWP at ¶ 16, In
re Southeastern Cheese Corp., ADEM Permit No. IU 39-53-00113 (ADEM Dec. 11, 2014), available at
http://www.adem.alabama.gov/newsEvents/notices/dec14/pdfs/12secheese.pdf (alleging that Southeastern
Cheese pumped approximately 90,000 gallons of water into Cottonwood Creek in 2014). Arrowhead
Landfill, which is authorized to receive the largest volume of waste in Alabama, sits just across the road
from the long-time homes of Uniontown residents, many of whom are on fixed incomes. Access to health
care is difficult: there is no hospital in Uniontown and residents travel long distance for any specialized
care. As Lisa Evans suggested, the permit granted by ADEM to the Landfill failed to require provisions
that would address the potential impacts on this population of inhalation of coal dust, a human carcinogen
associated with increased risks of skin, lung, and bladder cancers, among other illnesses, or provide for
groundwater monitoring that would be adequate to protect human health and the environment. Residents
have experienced respiratory problems, neuropathy, nose-bleeds, headaches, dizziness, skin conditions,
nausea, interference with sleep, and interference with outdoor activities, among other harms.
With these failures as background, residents of Uniontown filed a complaint with EPA on May
30, 2013 asking EPA to conduct an investigation to determine whether ADEM violated Title VI in the
issuance and modification of Arrowhead Landfill’s Solid Waste Disposal Facility Permit in 2011 and
2012 and, unless ADEM voluntarily implements a less discriminatory alternative, to initiate proceedings
to terminate EPA financial assistance to ADEM. Latonya Gipson et al., Title VI Civil Rights Complaint
and Petition for Relief or Sanction – Alabama Department of Environmental Management Permitting of
Arrowhead Landfill in Perry County, Alabama (EPA OCR File No. 01R-12-R4) at 29 (filed May 30,
2013), Exhibit 4 (with exhibits). ADEM’s decision to modify and reissue operating permits to the
Arrowhead Landfill without adequate protections have a clear disparate impact on the basis of race in

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 violation of Title VI of the Civil Rights Act of 1964 and EPA regulations, 40 C.F.R. Part 7.2 In particular,
the complaint lists some of the impacts of the Landfill on the community:
A.

B.
C.
D.
E.
F.

The frequent emission of odors from the landfill that are unpleasant to persons
and that cause lessened human food and water intake, interference with sleep,
upset appetite, irritation of the upper respiratory tract (nose and throat) and eyes,
headaches, dizziness, nausea, and vomiting … and interference with outdoor
activities and the enjoyment of property….
Increased populations of flies … that may be carriers of dozens of infectious
viruses, bacteria, and parasites….
Increased populations of birds … that deposit droppings and that may be carriers
of dozens of infections viruses, bacteria, and parasites….
Increased noise … causing headaches and interference with sleep….
The frequent emission of fugitive dust from the landfill that causes particulate
deposition on personal and real property … including homes, porches, vehicles,
laundry, and plantings….
Decreased property values….

Ex. 4, at 12-13 (references omitted). On my trips to Uniontown, residents have also shared their
experiences with other health issues such as neuropathy and nose bleeds; the impact on pets and animals
such as dogs and cattle; concerns about allowing children to play in the yard; changes in the growth of
fruits and vegetables from their gardens, which now often seem to shrivel up; and worries about both well
and town water. They point out that the Arrowhead Landfill doesn’t even have a fence around the
perimeter, which might at least prevent animals from going in and out of the facility. Of course, a fence
wouldn’t be sufficient, but it would be a start.
This community is home to individuals and families whose ancestors were enslaved by the nearby
plantations and, then, were sharecroppers. Land was hard-earned. People have enjoyed a rural way of
life and their community. Perhaps no aspect of the effect of the Landfill is as heartrending as the impact
on New Hope Cemetery, a historically black cemetery adjacent to the Landfill. As Esther Calhoun
testified, the siting and operation of this enormous Landfill right next to a sacred space is not only a very

2

40 C.F.R. § 7.35(b) provides:
A recipient shall not use criteria or methods of administering its program which have the effect of
subjecting individuals to discrimination because of their race, color, national origin, or sex, or
have the effect of defeating or substantially impairing accomplishment of the objectives of the
program with respect to individuals of a particular race, color, national origin, or sex.

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 real and concrete harm associated with the permit but it is also symbolic of the perception that residents
have that regional and state government have utter disregard for the interests and rights of Uniontown
residents.
These impacts – the odors, flies, vultures, noise, fugitive dust, decrease in property values,
interference with sacred space – fall and continue to fall disproportionately on African Americans.
Notably, the state of Alabama is approximately 27% African American, Perry County is approximately
68% African American, Uniontown is approximately 90% African American, and the census blocks
directly abutting the Landfill are between 88% and 99% African American. QuickFacts, Alabama, U.S.
Census Bureau, http://www.census.gov/quickfacts/table/PST045215/01,00; QuickFacts, Perry County,
Alabama, U.S. Census Bureau, http://www.census.gov/quickfacts/table/PST045215/01105,00; American
Fact Finder, U.S. Census Bureau, Profile of General Population and Housing Characteristics: 2010, 2010
Demographic Profile Data, Uniontown (town), Alabama,
http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=CF; Census Data
analyzed using ArcGIS 10.2 and the most recent American Community Survey data; Moreover, while the
community most directly and adversely impacted by the Landfill is largely African American, the
designated service area for the Landfill includes 33 states: this small community is serving as a waste
receptacle for a significant portion of the country, which is predominantly white. The racial composition
of that 33-state service area – the source of the waste – is only 15.1% Black. Ex. 4 at 23.
EPA’s Office of Civil Rights accepted two allegations for investigation:

1) ADEM violated Title VI and EPA's implementing regulations on September 27, 2011,
by reissuing Permit No. 53-03 to Perry County Associates, LLC to construct and operate
the Arrowhead municipal solid waste landfill in Perry County, Alabama. The Arrowhead
landfill permit renewal will adversely and disparately impact the African- American
residents in the nearby community; and
2) ADEM violated Title VI and EPA's implementing regulations on February 3, 2012, by
authorizing a permit modification to expand the disposal area of the Arrowhead
municipal solid waste landfill in Perry County, Alabama, by 169.17 acres (66%). The
modification will have the effect of adversely and disparately impacting the AfricanAmerican residents in the surrounding community.

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 Letter from Vicki Simons, Acting Dir., EPA Office of Civil Rights, to David Ludder (June 27, 2013),
available at http://www.epa.gov/sites/production/files/2014-05/documents/12r-13r4_accept_cmplt_redacted_0.pdf. The Commission might ask how and why decision-makers at TVA and
EPA decided to move the coal ash to this community, and how and why ADEM and local authorities
failed to listen to or protect their citizens.
EPA’S FAILURE TO ENSURE COMPLIANCE AND ENFORCE TITLE VI OF THE CIVIL
RIGHTS ACT OF 1964
I’ve heard from Uniontown residents that they believe that the coal ash came to their community
because the residents are poor and black and that protections are weak because no one cares. When I first
went to Uniontown and stood before a community meeting, I was asked “Why should we trust you?” As
the attachments to their Title VI Complaint show, Uniontown residents traveled to Montgomery to meet
with ADEM, participated in a “listening session” with staff from EPA Region 4, and otherwise taken
every step they could to raise concerns about the impact of the Landfill and the arrival of coal ash.
Residents were disappointed time and again when government officials, including EPA staff who were,
by all accounts, taken aback by the mountain of coal ash at Arrowhead Landfill and its proximity to
people’s homes, failed to follow up. Given the glaring environmental justice issues in the community and
concerns raised by community members, EPA Region 4 staff might have made referrals to EPA’s Office
of Environmental Justice and Office of Civil Rights (“OCR”) for further action but, at least as far as
members of the community heard, no such further steps were taken.
OCR is charged with the responsibility to enforce federal civil rights laws that prohibit
discrimination against members of the public by recipients of EPA funds such as ADEM. OCR has
affirmative authority to request data and information and to conduct on-site compliance reviews when it
has reason to believe that discrimination is occurring in a program or activity receiving federal funds. See
40 C.F.R. § 7.115(a). OCR’s failure to exercise this authority, together with its poor record investigating
complaints, has given recipients of federal funds a sense of impunity – I think it’s safe to say that no
government official in the chain of decisions ultimately leading to the expansion of Arrowhead Landfill

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 and the receipt of coal ash at the site would have had any serious concern that they would ultimately be
held accountable for violating Title VI and EPA’s implementing regulations. Even after EPA’s visit to
the site and listening session on June 15, 2011 at Uniontown Elementary School, see Ex.4 at Exs. P1 and
P2 (attached to Complaint), EPA staff made no referral to OCR for a compliance review. This has to
change: EPA should develop a protocol setting forth criteria for internal referrals to OCR for compliance
reviews.
More generally, EPA must begin to exercise its authority under Title VI in order to develop
credibility with recipients and complainants. There are a number of steps that EPA must take to
strengthen its civil rights compliance and enforcement program, some of which are outlined in the
remainder of these comments. Ultimately, though, EPA must fully take responsibility for enforcing civil
rights, above and beyond exercising its authority under environmental laws. Until EPA demonstrates the
will, civil rights compliance and enforcement in the environmental space will largely be illusory.
MEASURES TO ADDRESS DISPARATE IMPACTS AND REFORM ITS CIVIL RIGHTS
COMPLIANCE AND ENFORCEMENT PROGRAM
Though prospects for legislative action in the short run may be dim, the Commission should issue
a clarion call for Congress to enact legislation to affirm the private right of action to enforce federal
agency regulations promulgated pursuant to Title VI. The Supreme Court’s decision in Alexander v.
Sandoval, 532 U.S. 275 (2001), which held that Title VI afforded no private right of action unless
plaintiffs could make a showing of intentional discrimination, left overburdened communities of color
seeking to enforce their rights at the mercy of OCR, which has lacked the know-how and will to develop a
meaningful civil rights compliance and enforcement program. See Deloitte Consulting LLP, Evaluation
of the EPA Office of Civil Rights (2011), available at https://goo.gl/CmkrrZ; Yue Qiu & Talia Buford,
Decades of Inaction, Ctr. for Pub. Integrity, Aug. 3, 2015,
http://www.publicintegrity.org/2015/08/03/17726/decades-inaction. In the long run, a private right of
action is necessary to ensure that the protection of civil rights is not subject to the vagaries of political
will.

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 In addition, EPA can take numerous steps to strengthen its Title VI compliance and enforcement
program. Many of the issues identified by the Commission in Not in My Backyard remain on the table –
for example, EPA failed to finalize and clarify legal standards, and EPA’s timeline for resolving
complaints, though improved during the last few years, continues to be a problem. See Not in My
Backyard at 34-54, 55-57, 77. Recommendations include:
•

EPA should enforce the law: Previously, in 1974, the Commission supported terminating
federal funding as an appropriate remedy in instances of noncompliance with Title VI. EPA has
yet to make a finding of discrimination and to impose meaningful remedies. EPA should use all
legal tools – in the Title VI complaint context and using its affirmative authority – to protect the
health status of already overburdened low-income communities of color in the context of coal ash
and other environmental hazards.

•

EPA should clarify legal standards: Stakeholders continue to try to make sense of EPA’s
various incomplete and unfinished guidance documents, including the Interim Guidance for
Investigating Complaints Challenging Permits (1998) (“Interim Guidance”) and the Draft Revised
Guidance, see Draft Title VI Guidance for EPA Assistance Recipients Administering
Environmental Permitting Programs (Draft Recipient Guidance) and Draft Revised Guidance for
Investigating Title VI Administrative Complaints Challenging Permits (Draft Revised
Investigation Guidance), 65 Fed. Reg. 39,650 (June 27, 2000), as well as the more recent draft
“white paper” on adversity. See EPA, Title VI of the Civil Rights Act of 1964: Adversity and
Compliance with Environmental Health-Based Thresholds (drft. Jan. 24, 2013), available at
http://cchealth.org/hazmat/hmc/pdf/2013-0208-Title-VI-of-the-Civil-Rights-act-of-1964Adversity-and-Complaince.pdf (“Adversity White Paper”). EPA should now avoid any further
delay and issue a final Title VI guidance on the legal standards applicable to disparate impact
cases under Title VI. A comprehensive guidance document will convey expectations to all
stakeholders, including communities and recipients, and will help to standardize interpretations
within EPA.
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 •

EPA should bring legal standards into alignment with civil rights law: As the Commission
recommended in Not in My Backyard,
EPA should eliminate the ‘authority to consider’ provision from its final
guidance. The provision unnecessarily limits the agency’s Title VI adverse
disparate impact investigations and the ability of communities to establish
adverse disparate impact. This provision is especially a problem where state
funding recipients either create laws and regulations, or are shielded by existing
state laws and regulations, that restrict or limit what is within their ‘authority to
consider’ when determining adverse disparate impact in their permitting process.
Not in My Backyard at 77.

•

In addition, EPA should eliminate the rebuttable presumption that compliance with
environmental health standards is a defense to a disparate impact claim. See Letter
from Cal. Rural Legal Assistance Found. et al., to Robert Perciasepe, Acting Adm’r &
Deputy Adm’r, U.S. EPA (March 22, 2013) (commenting on EPA’s Adversity White
Paper), Exhibit 5; Letter from Ctr. for Race, Poverty & the Env’t. et al., to Gina
McCarthy, Adm’r & Gwendolyn Keyes Fleming, Chief of Staff, U.S. EPA (Nov. 24,
2014) (raising concerns about the status of the rebuttable presumption), Exhibit 6.
Moreover, EPA should incorporate an inclusive definition of adverse impact, including
cumulative impacts and socioeconomic, health, and environmental factors.

•

EPA should eliminate the backlog of old cases but not at the expense of justice: The backlog
of cases continues to be a problem. As discussed above, OCR’s docket continues to include
investigations that have been open for more than a decade without preliminary findings or
resolution. EPA should establish a date by which the EPA will complete its investigations and
resolve all pending Title VI civil rights complaints, with the involvement of complainants and
their attorneys. At the same time, investigations must be thorough: justice will be ill-served by
formulaic investigations aimed to move a case off the docket. The call for a deeper dive into
allegations in complaints is even more important for cases that are old. See Kristen Lombardi et
al., Environmental Racism Persists Amid EPA Inaction, NBC News, Aug. 3, 2015, available at
http://www.nbcnews.com/news/nbcblk/environmental-racism-persists-epa-one-reason-why- 14 -

 n402716 (finding that EPA often deemed allegations moot because of its own inaction).
Evidence may be lost to time but the underlying environmental injustice and civil rights
violations are no less real. In such cases, OCR should engage complainants to develop creative
approaches to exploring and addressing the issues raised in their complaints.
•

EPA should maintain regulatory deadlines: On December 15, 2015, EPA issued a notice of
proposed rulemaking that includes a proposal to eliminate time limits for notifying recipients and
complainants of receipt of the complaint, jurisdictional decisions, and preliminary findings of
discrimination, if any, and recommendations. See Nondiscrimination in Programs or Activities
Receiving Federal Assistance from the Environmental Protection Agency, 80 Fed. Reg. 77,284
(proposed December 14, 2015). Regulatory deadlines are one of the few ways that complainants
can hold OCR accountable for civil rights enforcement, and EPA’s proposal will weaken rather
than strengthen the law. EPA should not amend 40 C.F.R. §§ 7.120(c), (d)(1)(i), 7.115(c) to
eliminate time limits for investigations. See Letter from Ashurst Bar/Smith Cmty. Org. et al., to
Gina McCarthy, Adm’r, U.S. EPA (Oct. 27, 2015), Exhibit 7 (commenting on EPA External
Compliance and Complaints Program Strategic Plan, anticipating proposed rulemaking).

•

EPA should bring its practices in line with principles of environmental justice: EPA should
modify policies and practices governing communications with complainants and communitybased stakeholders in the Title VI enforcement process as well as in decision-making more
generally, to ensure a more active role for complainants and community-based stakeholders in the
Title VI enforcement process, and to encourage meaningful engagement of overburdened
communities in permitting and other decision-making. See Ex. 5 (comments on Title VI of the
Civil Rights Act of 1964: Draft Role of Complainants and Recipients in the Title VI Complaint
and Resolution Process); Letter from Marianne L. Engelman Lado, Earthjustice, on behalf of
Bradley Angel, Greenaction for Health & Envtl. Justice et al., to Jeryl Covington & Helena
Wooden-Aguilar, U.S. EPA, OCR (Jan. 7, 2016), Exhibit 8; Complaint for Injunctive and
Declaratory Relief at ¶ 11, Garcia v. McCarthy (N.D.Cal. Aug. 23, 2013) (Case No. 3:13-cv- 15 -

 03939), available at https://assets.documentcloud.org/documents/1348908/garcia-complaint.pdf,
(alleging that OCR acted arbitrarily and capriciously by entering a voluntary compliance
agreement without the knowledge of complainants).

Environmental justice organizations have submitted many other recommendations to strengthen
Title VI enforcement at EPA. See Letter from Ctr. for Race, Poverty & the Env’t. et al., to Gina
McCarthy, Adm’r & Gwendolyn Keyes Fleming, Chief of Staff, U.S. EPA (November 5, 2013), Exhibit
9; Letter from Advocates for Envtl. Human Rights et al., to Lisa Jackson, Adm’r, U.S. EPA (July 3,
2012), Exhibit 10.
CONCLUSION
Post-Sandoval, many communities have all but given up on civil rights compliance in the
environmental context. The experience of residents of Uniontown, Alabama poignantly demonstrates the
impact of having such a gaping hole in the fabric of the nation’s civil rights laws. Residents of
Uniontown should not have to live with the consequences of the TVA disaster any more than the people
of Kingston, Tennessee. Unless plaintiffs have evidence of intentional discrimination, they can no longer
go to court to enforce the law. As a result, they must rely on EPA, and day after day, inequities build:
some communities export their garbage and are able to keep more of the toxic sources outside of their
borders, while others are inundated.
Recently, new staff have brought new energy to OCR and I want to acknowledge their work.
Most notably, in December, 2015, OCR released a long overdue draft Case Resolution Manual, which
could help to bring clarity to OCR’s procedures. This is a positive step but, as suggested above, OCR has
a long way to go.
Once again, thank you for the opportunity to present this statement. On behalf of Earthjustice, its
clients, and our partners, I appreciate your examination of civil rights compliance and enforcement in the
context of coal ash.

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 Respectfully submitted,

Marianne L. Engelman Lado
Senior Staff Attorney
Earthjustice
48 Wall Street, 19th Floor
New York, NY 10005
(212) 845-7393
mengelmanlado@earthjustice.org

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