UNITED STATES ENVIRONMENTAL PROTECTION AGENCY saw WASHINGTON, DC. 20460 W, 4. Pan?? .33 4' aortic? CIVIL RIGHTS COMPLIANCE OFFICE OFFICE OF GENERAL COUNSEL March 1, 2018 Return Receipt Requested In Reply Refer to: Certi?ed Mail 7015 3010 0001 1267 2835 EPA File No. l2R-l3-R4 Marianne Engelman Lado Environmental Justice Clinic Yale Law School 12?' Wall Street New Haven, Connecticut 065] 1 Re: Closgre of Administrative Complaint, EPA File No. 12R-13-R4 Dear Ms. Engelman Lado: This letter is to notify you that the US. Environmental Protection Agency?s (EPA) External Civil Rights Compliance Of?ce (ECRCO) is resolving and closing, as of the date of this letter, the administrative complaint ?led with EPA on June 3, 2013, and the retaliation allegation ?led on August 19, 2016, against the Alabama Department of Environmental Management (ADEM). The complaints generally alleged that ADEM violated Title VI of the Civil Rights Act of 1964, as amended, 42 United States Code 2000d et seq. (Title VI) and the nondiscrimination regulation found at 40 Code of Federal Regulations (C.F.R.) Part With reSpect to the speci?c issues addressed in this case, EPA ECRCO ?nds insuf?cient evidence to conclude that ADEM violated Title VI and nondiscrimination regulation. EPA ECRCO is responsible for enforcing several federal civil rights laws that prohibit discrimination on the bases of race. color, national origin (including limited-English pro?ciency), disability, sex, and age in programs or activities that receive federal ?nancial assistance from the EPA. On June 27, 2013. Of?ce of Civil Rights accepted for investigation two issues raised in a May 2013 complaint (hereinafter referred to as the ?May 2013 The two issues were: Whether ADEM violated Title VI and 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 land?ll in Perry County, Alabama, because the Arrowhead Land?ll permit renewal will adversely and disnarately impact the Of?ce of Civil Rights is now identi?ed as the External Civil Rights Compliance Office. 3 Letter from Vicki Simons. Director. OCR {signed by Helena Wooden-Aguilar, External Compliance Assistance Director) to David Ludder. Complainant. Acceptance of Administrative Complaint (June 27, 2013}. Ms. Engelman Lado Page 2 African-American residents in the nearby community; and Whether ADEM violated Title VI and implementing regulations on February 3, 2012, by authorizing a permit modi?cation to expand the disposal area of the Arrowhead municipal solid waste land?ll in Perry County, Alabama, by 169.1? acres because the modi?cation will have the effect of adversely and disparately impacting the African- American residents in the surrounding community. ECRCO investigated the May 2013 issues and ?nds that the record evidence does not establish a prima facie case of discrimination based on disparate impact. Accordingly, ECRCO finds insuf?cient evidence to conclude that ADEM violated Title VI and nondiscrimination regulation in regard to the 201] permit reissuance and 2012 permit modi?cation. While not legally required, ECRCO believes that ADEM could increase its leadership role by bringing together the Arrowhead community, pennittees, as well as other local government entities to share important information, ensure that its citizens and stakeholders understand roles, rights and responsibilities and address issues constructively. If ADEM voluntarily chooses to play a leadership role and identify stakeholders in the affected community, although these actions are not legally required, ECRCO recommends ADEM make a concerted effort to create andfor re-engage partnerships with private and public entities to share information on its website and through standard media outlets. Such information sharing would ideally include the relevant community in the geographic area near the Arrowhead Land?ll and those individuals and groups that have previously expressed an interest in environmental decision-making activities; environment and environmental justice organizations; religious institutions and organizations; public administration, environmental, law and health departments at colleges and universities; tribal governments; and relevant community service organizations. In 2016, ECRCO received an additional allegation and accepted for investigation, to be addressed within the existing complaint: Whether actions or inactions, violated 40 CPR. 7.100, which prohibits intimidating, threatening, coercing, or engaging in other discriminatory conduct against any individual or group because of actions taken andr?or participation in an action to secure rights protected by the non-discrimination statutes OCR enforces. ECRCO investigated the retaliation issue and ?nds insuf?cient evidence of discrimination based on retaliation. However, as more fully discussed below, although these actions are not legally required, we recommend ADEM improve its nondiscrimination complaint processes for addressing and resolving retaliation complaints. In addition, we believe there are ways for ADEM to improve the underlying processes and environmental complaint determinations which form the basis for some of Complainant?s claims of retaliation. Background In conducting this investigation, ECRCO reviewed available information, including the original complaint submitted to ECRCO. responses to acceptance of the complaint Ms. Engelman Lado Page 3 and requests for information, and all other supplemental information submitted to ECRCO through telephone interviews and conversations, letters, and emails by the Complainant and Recipient pertaining to the Arrowhead Land?ll. ECRCO reviewed studies, water sample reports, and air quality modeling and dust sample reports. In addition, ECRCO conducted a site visit to Uniontown in August 2014. During the site visit, ECRCO conducted 14 in?person interviews with the complainants as well as with 6 other witnesses. ECRCO also conducted several telephonic interviews from 2014 to present day. The ECRCO investigation included a review of regulations3 and administrative codes,4 permitting documents, and inspection reports. In particular, ECRCO reviewed permit applications and correspondences; facility engineering designs and modification as completed by the facility?s primary engineering consulting ?rms Jordan Jones Goulding, Inc; and, Hodges, Harbin, Newberry Tribble, Inc. monitoring data and inspection reports, air permit applications, wetlands applications and certi?cations, waste acceptance certi?cations, operating permits, and public hearing transcripts. ADEM additionally submitted a copy of a legislated solid waste study completed by Auburn University.5 During the course of this investigation, ECRCO reviewed the Arrowhead Land?ll?s original engineering designs, including site suitability study, site layout, original surface and groundwater sampling reports, ?nancial assurances, and host agreementsicontracts. According to review, the Arrowhead Land?ll is designed to meet the minimum design and operating standards for municipal solid waste (MSW) land?lls? For its part, ADEM has conducted regulated inspections of the Arrowhead Land?ll and documented compliance and noncompliance issues and reviewed the Arrowhead?s Land?ll?s waste certi?cations. ADEM has reviewed and approved permitting and operational variances for the Arrowhead Land?ll, including operator requirements, alternative daily cover. and leachate recirculation, and has approved alternative daily covers for the Arrowhead Land?ll.7 I. The May 2013 Issues Legal Standard investigation was conducted under the authority of Title VI of the Civil Rights Act of 1964, and nondiscrimination regulation (40 CPR. Part and consistent with 3 ADEM Admin. Code r. 335-3-19, and 335-13. 4 The Code ofAlabama l975. Title 22, Chapter 27. 5 Auburn University, Administrative Tachnicai Support in Evaiaating Pttbiic input on Patentiai Enhancements to the State Sait'a? Waste Program, Phase it. Framcwat'kfor Changing Alabama is Approach to Soiid Waste Management (Final Report), November 3. 2013. ?5 4t] C.F.R. Part 253 and ADEM Admin. Code r. 335- 3-4 At the time of review, ECRCO found no Notices ot?Violations (NO?v's) or Administrative Orders (A0) included in the available information reviewed. The reviews ofthe regulatory website did not show any non- compliance issues related to the state issued permits. Arrowhead Land?ll, at the time of review, had permits for solid waste disposal, surface water discharges, wetlands, and air quality. Although no new permits were issued, Prevention of Signi?cant Deterioration (FED) and New Source Performance Standards (NSPS) evaluations have been completed. Ms. Engelman Lado Page 4 Case Resolution Manual.8 regulation at 40 C.F.R. ?7.35(b) states, in relevant part, that recipient shall not use criteria or methods of administering its program or activity which have the effect of subjecting individuals to discrimination because of their race, color, or national origin." With respect to the May 2013 issues ECRCO analyzed whether methods of administering its permitting program had an adverse and diSparate impact on the African- American residents in the surrounding conununity, in violation of Title VI, under a disparate impact or discriminatory e?ccts standard? In a disparate impact case, EPA must determine whether the recipient used a facially neutral policy or practice that had a suf?ciently adverse (harmful) and disproportionate effect based on race, color, or national origin. This is referred to as the prima facie case. To establish an adverse disparate impact, EPA must: (I) identify the speci?c policy or practice at issue; establish adversity/baron?3 (3) establish disparity;? and (4) establish causation.l2 The focus here is on the consequences of the recipient?s policies or decisions, rather than the recipient?s intent.'3 The neutral policy or decision at issue need not be limited to one that a recipient formalizes in writing, but also could be one that is understood as ?standard operating procedure? by recipient?s employees. '4 Similarly, the neutral practice need not be affirmatively 3 Case Resolution Manual (Jan. 2017), at 01 [_201 'i.pdf. 9829. eg. Guardians Ass '11. v. Civil Sci-v. Comm?n, 463 US. 582, 593 (1933) (concluding that Title VI reaches unintentional, disparate impact as well as intentional discrimination); Alexander v. Cheats. 469 U.S. 287. 293 (1985) (con?rming that, under Guardians, agencies enforcing Title VI can address disparate impact discrimination). Many subsequent cases have also recognized the validity of Title VI disparate impact claims. See. eg. v. Carcrc, 85 F.3d 481, 436 (1001 Cir. 1996) (citing Guardians); New York Urban League v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995}; Chicago Lindiey, 66 F.3d 819, SET-28 (7th Cir. 1995); David K. v. Lane, 839 F.2d 1265. 1274 (7th Cir. 1938) (internal citations omitted}; Georgia State v. Georgia, 'i'iS F.2d 1403. 1417 (I Cir. 1985): Larry F. v. Rites, 793 F.2d 969, 932. fn.10 (9th Cir. 1984). In addition, by memorandum dated July 14, 1994, the Attorney General directed the Heads of Departments and Agencies to ?ensure that the disparate impact provisions in your regulations are fully utilized so that all persons may enjoy equally the bene?ts of [?ederally ?nanced programs.? Attorney General Memorandum on the use ofthe Disparate Impact Standard in Administrative Regulations under Title VI ofthe Civil Rights Act of 1964 (July 14. 1994) (http usticegoviagfattomey-ge neral-j ly- l4? 994-memorandum-use-diSparate-i mpact~standard- administrative-regulations U.S. External Civil Rights Compliance Of?ce Toolkit, p. 4 (January 18. 200?). ?1 Adversity exists ifa fact speci?c inquiry determines that the nature, size, or likelihood ofthe impact is suf?cient to make it an actionable harm. U.S. External Civil Rights Compliance Office Toolkit, p. 4 In analyzing disparity, EPA analyzes whether a disproportionate share of the adversityiharm is borne by individuals based on their race. color, national origin, age, disability or sex. A general measure ofdisparity compares the proportion of persons in the protected class who are adversely affected by the challenged policy or decision and the proportion of persons not in the protected class who are adversely affected. See Isamoanidis v. W. Haven Fire 352 F.3d 565, 5?6-77 (2d Cir. 2003) (internal citations omitted). '3 Sec N. KC. Eavti. Justice AM. u. 214 F.3d 65, 69 (2d Cir. 2000) (plaintiffs must ?allege a causal connection between a facially neutral policy and a disproportionate and adverse impact on minorities?). '3 Lat.- v. Nichois, 414 US. 563. 563 (1974). '4 U.S. External Civil Rights Compliance Of?ce Toolkit. January 18, 201?. p. 9. Ms. Engelman Lado Page 5 undertaken, but in some instances could be the failure to take action. or to adopt an important - IS policy. If the evidence establishes a prima facie case of adverse disparate impact, as discussed above, EPA must then determine whether the recipient has articulated a ?substantial legitimate justification? for the challenged policy or practice. ?5 ?Substantial legitimatejusti?cation? in a disparate impact case is similar to the Title VII employment concept of ?business necessity,? which in that context requires a showing that the policy or practice in question is demonstrably related to a signi?cant, legitimate employment goal.? The analysis requires balancing recipients? interests in implementing their policies with the substantial public interest in preventing discrimination.? If a recipient shows a substantial legitimate justi?cation for its policy or decision, EPA must also determine whether there are any comparably effective alternative practices that would result in less adverse impact. In other words, are there less discriminatory alternatives?lg Thus, even if a recipient demonstrates a substantial legitimate justi?cation, the challenged policy or decision will nevertheless violate federal civil rights laws if the evidence shows that less discriminatory alternatives exist.? Analysis If EPA does not have sufficient evidence to establish a prima facie case of adverse disparate impact, as explained above, it cannot determine that the recipient has engaged in discrimination. To determine whether an adverse disparate impact occurred as a result of reissuance and subsequent modi?cation of the permit, ECRCO examined whether the alleged harms were indeed adverse harms and whether there was a causal connection between the speci?c permitting actions related to the Arrowhead Land?ll and the alleged adverse harms. As discussed more Speci?cally below, as to each of the alleged harms relating to the 2011 and 2012, permit reissuance and permit modi?cation, reapectively and current Land?ll operations, ECRCO ?nds 15 See, tag. Maricapa Cty., 915 F. Supp. 2d 1073, 1039-81 (D. Ariz. 2012) (finding that plaintiffs stated a claim of disparate impact violation based on national origin where recipient ?failed to develop and implement policies and practices to ensure [limited English pro?cient] Latino inmates have equal access tojail services" and discriminatory conduct of detention of?cers was facilitated by ?broad, unfettered discretion and lack of training and oversight" resulting in denial of access to important services}. ?Georgia State Conf. 775 F.2d at 1417. See also. Patterson v. McLean Credit Union, 491 US. 164, 186-87 (noting the framework for proof developed in civil rights cases), citing. Texas Dept. ofCommtmity A?airs v. Sardine, 450 U.S. 243 (1981}; McDonneif Dottgt'as Corp. v. Green, 4l 1 U.S. 7'92 (1973). '7 Wards Cove Packing inc. v. Antonio. 490 U.S. 642, 659-660 {1989); Gt'iggs v. Duke Power (70., 401 U.S. 424. 432 (1971). The concept of?business necessity" does not transfer exactly to the Title VI context because ?business necessity" does not cover the full scope of recipient practices that Title VI covers, which applies far more broadly to many types of public and non-pro?t entities. See Texas Dept. omets. and A?atrs v. inclusive Communities Project. 135 S. Ct. 2507, 2522-24 (2015) {recognizing the limitations on extension ofthe business necessity concem to Fair Housing Act complaints). ?3 See. Department ofJustice Title VI Legal Manual. Section V11: Proving Discrimination Disparate Impact, 1"Eisttm v. Tnitartega Cty. 8d. ofEdur-., 99? F.2d 1394. (1 1th Cir. 1993). U.S. External Civil Rights Compliance Of?ce Toolkit. p. 9. 2? U.S. External Civil Rights Compliance Of?ce Toolkit. p. 9. Ms. Engelman Lado Page 6 insuf?cient evidence to establish a prima facie case of adverse disparate impact discrimination. Alleged ADEM Discriminatory Policy or Practice September 20] 1' (Permit #53-03) On September 27, 2011, ADEM made a determination to renew Permit #53-03. which is a Solid Waste Disposal Facility Permit for the Arrowhead Land?ll. The permitted facility boundaries consist of approximately 926.97 acres with ~256.151 acres permitted for disposal operations.21 February 2012 (Permit #53-03) On February 3, 2012, ADEM approved the modi?cation that increased the disposal acreage from ~256.151 acres to ~425.33 acres. The modi?cation would result in an increase of 169.179 acres permitted for disposal operations. The permitted facility boundaries remained 4276.9? acres.22 The types of waste accepted, service area, and daily accepted waste volumes and the Land?ll boundaries that were permitted, remained unchanged during this modi?cation. The Alleged Harms The alleged harms that relate to the 2013 accepted issues were identi?ed in two general categories health-related and non-health related.23 The health-related impacts included alleged harms stemming from the Land?ll?s effects on air quality and water quality. During the investigation, complainants also raised concerns about coal ash and its impact on their health and well-being. The non-health related impacts included degradation of the cemetery, increased roaming wild-life and dogs entering and exiting the Land?ll property from lack of a fence, and diminution of property values. For purposes of analyzing whether there is a prima facie case of discrimination based on disparate impacts, ECRCO has grouped the alleged harms into health- related and non-health related subject headings to describe its review of evidence gathered to review potential disparate impact. Health-Related Impacts I Air Related Complainants raised concerns during the course of the investigation about the Land?ll and its effect on air quality and their health. Some of the described health impacts included aggravation 3'Municipal Solid Waste Land?ll Permit Renewal 53-03 issued September 27. 20] l; ADEM File No. 17668_53- U3_105_2t}l ?Municipal Solid Waste Permit Modi?cation 53-03 modi?cation date November 4. 201 and February 3. 20 IE.- Enforcement and Compliance Information eFile File Name l?668_53- 33 Title VI Civil Rights Complaint and Petition for Reliefor Sanction- Alabama Department of Environmental Management Permitting of Arrowhead Land?ll in Perry County. Alabama (EPA OCR File No. l] R-12-R4) from David A. Ludder. to Vicki Simons, Director. Of?ce ofCivil Rights (May 30, 2013}. Ms. Engelman Lado Page 7 of asthma, wheezing, shortness of breath, sinus problems, persistent coughing, sore throats, runny eyes, respiratory issues, nosebleeds, headaches, and additional health impacts??1 Complainants also raised concerns regarding acrid smell; increased dust in the air and negative impacts on vegetation. In regards to odor, Complainants have submitted a number of declarations which describe the smell as ?heavy, stinky, horrible, powerful, foul, like ammonia, acrid, stench of rotten eggs, etc.?25 The Complainants have also described the effects of the odor, and stated that it has caused nausea and hindered outside activity?" As part of prima facie analysis of ?adverse harm,? it reviewed an environmental report submitted by Complainants the Stone Lions Environmental Corporation Report (?Stone Lions Report?? which included an air dispersion modeling study of the atmospheric emissions of total suspended solids, hydrogen sul?de, and non-methane organic compounds from the Arrowhead Land?ll and the analysis of dust wipe and water samples submitted by the Complainant.28 In addition, the Stone Lions Report attempted to correlate its study data to alleged health impacts and other harms in the community. For example, the Stone Lions Report states that hydrogen sul?de (H28) and total suspended particulates (TSP) air emissions at the Arrowhead Land?ll resulted in a signi?cant negative impact on the neighborhoods near the Land?ll boundaries.29 In order to review the scientific methodology used for this study and the conclusions reached with respect to environmental and health impacts, ECRCO consulted environmental technical experts across EPA, including the Of?ce of Air and Radiation, Of?ce of Research and Development, Of?ce of Land and Emergency Management, both in EPA headquarters and Region 4.30 The EPA experts assisted with the assessment of available records and reports; evaluated the Arrowhead Land?ll?s regulatory compliance; and reviewed the methodology and analysis utilized in the Stone Lions Report. 34 Id. Information also gathered through telephonic and in-person interviews conducted by ECRCO between 2014 through 2017 with Complainants. 35 Letter from Marianne Engelman Lado, Senior Staff Attorney to Velveta Director and Jeryl Covington, Acting Assistant Director, Of?ce of Civil Rights, USEPA. (March 8. 2016). 3" ECRCO did not review Complainants? medical records to con?rm the reports of health impacts nor did ECRCO conduct a health survey of the Land?ll?s adjacent residents as part of this investigation. 27 Letter from David A. Ludder, Attorney for Complainants to Ms. Vicki Simons, Director, Of?ce of Civil Rights. U.S. Environmental Protection Agency. (May 30, 2013). See (Exhibit Stone Lion?s Environmental Corporation Report: An Evaluation of Particulate Matter, Hydrogen Sul?de, and Non-Methane Organic Compounds from the Arrowhead Land?ll. (August 13, 2012). 35 Adam Johnston, Creek Keepers* Wipe and Water Sample Results February 34, 201 1. 3" Stone Lions Report, at p.15. 3" Sec ECRCO Case Resolution Manual, at Chapter 1 Deputy Civil Rights Of?cials and Title VI Case Management Protocol Orders (January 201?}. at EPA Orders 47003 and 47014 establish a protocol for processing complaints of discrimination that brings program and regional of?ces throughout the agency into a collaborative process for coordinating and committing the analytical resources, expertise, and technical support needed to address civil rights compliance. Although ECRCO retains the primary authority and responsibility for carrying out the civil rights program, the orders clearly emphasize a commitment with the support ofa network of Deputy Civil Rights Of?cials (DCROs) established under Order 4700, to support the civil rights mission and ensure its success throughout EPA. The 2013 protocol (Order 4701) anticipated that ECRCO would develop speci?c procedures to improve implementation ofthe protocol and ensure the prompt, effective, and ef?cient resolution of civil rights cases. Id. at p.ii. Ms. Engelman Lado Page 8 Speci?cally, the EPA experts conducted a review of the air dispersion model and calculations contained in the Stone Lions Report, and the dust wipe and water samples analyses submitted as part of the administrative complaint. Based on the review of this information, the EPA experts identi?ed a number of de?ciencies in how the modeling was conducted, including uncontrolled sample collection techniques, improper collection protocols, and inadequate quality control regarding documentation of sample locations and collection and handling methods.3 Based on the de?ciencies identi?ed by the EPA experts, ECRCO determined that it could not rely on the Stone Lions Report modeling data and the Report?s attempt to correlate its study data to alleged health impacts and other harms in the community. To determine the air quality compliance status of the Arrowhead Land?ll, the EPA experts assessed the permitting obligations for the Arrowhead Land?ll. The Arrowhead Land?ll is subject to the New Source Performance Standard (NSPS) Subpart which addresses Standards of Performance for Municipal Solid Waste Land?lls that commenced construction, reconstruction or modi?cation on or after May 30, ?3'91.32 This rule requires the ownerr?operator of a MSW land?ll having a design capacity equal to or greater than 2.5 million megagrams and 2.5 million cubic meters to calculate the emission rate of non?methane organic compounds (NMOCs) and provide an annual report to the delegated authority.33 At time of review and based upon the volume of in-place waste in 201434 and the review of available documents, the Arrowhead Land?ll had never reported an NMOC emission rate equal to or greater than 50 megagrams per year (Mg/yr.) and therefore has no regulatory requirement for the installation of an active air pollution control device in order to maintain compliance with NSPS Subpart There were no additional air quality permit requirements at that time. The EPA experts reviewed the air quality regulatory standards or requirements. Based on this review, there is a daily National Ambient Air Quality Standard (NAAQS) of 150 micrograms per cubic meter (pg/m3). In addition to the NAAQS, there is a Prevention of Signi?cant Deterioration (PSD) Class ll increment of 30 pg/m3 for 24-hour and ug/m3 for an annual period. The more recent NAAQS standard is PMzs. The NAAQS for includes annual (l2 pig/mi) and 24-hour (35 rig/m3) values; and Class 11 PSI) increment includes annual (4 ugfm3} and 24-hour (9 pg/m3) increments. The Arrowhead is located in Perry 3' See Stone Lions Report, at pp.2-6 incorrectly equating total suspended particulates to PM [0 throughout the report, calculations and map; analysis assumptions incorrect andlor improperly assumed; assumption generation ?om coal ash is incorrect and the calculations are based on the coal ash emissions being similarly equal to emissions from MSW land?lls). 33 Code of Federal Register Title 40, Chapter I, Subchapter C, Part 60, Subpart (40 C.F.R. 60 Subpart 33 Per 40 C.F.R. Design capacity means the maximum amount of?solid waste a land?ll can accept, as indicated in terms of volume or mass in the most recent permit issued by the State, local, or Tribal agency responsible for regulating the land?ll, plus any in-place waste not accounted for in the most recent permit. 3? The in-place waste volume is the maximum composition of volume deposited within the disposal unit. At the time ofthe ECRCO investigation. the maximum volume of in-place waste occurred in 2014. The in-place waste volume is the determinate to calculate the emission rate and to assess the point of compliance for the MSW land?ll subject to 40 C.F.R. 60 Subpart Ms. Lado Page 9 County, Alabama, which is designated as attainment or unclassi?able/attainment for the and Pans NAAQS. 35 The EPA has monitoring regulations which prescribe the number of required air monitors for individual pollutants as a function of population and ambient concentration levels proximity to the NAAQS) see 40 CFR Part 58, Appendix D. For and there is no requirement that the State of Alabama operate air monitors in Perry County. The measurements taken at the Arrowhead during the period when coal ash was being disposed were done voluntarily by the Land?ll?s contractor. The Arrowhead Land?ll utilizes a SidePakTM Personal Aerosol Monitor to measure particulate matter This aerosol monitoring equipment is not a federal reference or equivalent method (F RMJFEM) sampler. Nevertheless, the 2.010 data found in the ADEM documents do not appear to have exceeded the daily PM In NAAQS of 150 ug/m3. As noted previously, however, the data were not collected using EM samplers and EPA experts would not necessarily consider the data comparable to the daily NAAQS. No monitoring data for PM2.5 were provided. In regards to odor, the Arrowhead Land?ll operates 25 solar powered gas vent flares for the Land?ll leachate collection system cleanout vents to mitigate odors.? The gas vent flares are not required by federal or state regulations, but are recognized mitigation techniques38 to eliminate the potential release of odors. During past inspections, ADEM inspectors have not noted any problems with these flares during annual compliance evaluations.? Based on the foregoing evidence, ECRCO was not able to establish a causal connection between the adverse harms alleged and the permitting actions underlying the May 2013 issues and the operations of the Arrowhead Land?ll. While compliance with environmental laws does not necessarily constitute compliance with federal civil rights laws, EPA recognizes a number of forms and types of evidence that could establish causation, including scienti?c proof of a direct link, prediction of potentially signi?cant exposures and risks resulting from stressors created by the permitted activities or other sources, and other complex methodologies.? In this case, ECRCO also considered the complaint, supplemental information, information from a site visit, interviews, a review of regulations and administrative codes. permitting documents, 35 An ?attainment? designation means the area is meeting the standard and not contributing to a nearby violation. As required by the Clean Air Act, states and tribes submit recommendations to the EPA as to whether or not an area is attaining the national ambient air quality standards (NAAQS) for criteria pollutants. The states and tribes base these recommendations on air quality data collected from monitors at locations in urban and rural settings as well as other information characterizing air quality such as modeling. A?er working with the states and tribes and considering the information from air quality monitors. andfor models, EPA will "designate" an area as attainment or nonattainment for the standard. 3? 1 Us? 3? Enforcement and Compliance Information eFile File Name: l7668w53- 03_l05_20l0021 33 VOC Controls (OAQPS Sept. 2000) Enforcement and Compliance Information eFile File Name: l?668_53- 03_ll}5_20 002] l_PERM_Gas_Vent_Flares.pdf US. Department ofJustice Title VI Legal Manual, Section VII (Proving Discrimination Disparate Impact). at at Ms. Engelman Lado Page 10 inspection reports, studies, and air quality modeling and dust sample reports. Here, the site- speci?c information did not establish that any alleged harms were caused by the permitting actions. Because causation was not established, and therefore no prima facie case of discrimination, ECRCO did not examine disparity and adversity. In Water Related Complainants raised concerns about the quality of drinking water from both public drinking water systems and of their personal wells.4 Speci?cally, Complainants state that the well water near the Landfill does not smell clean and that city drinking water comes out brown and dirty looking.42 Complainants state that the uncertainty has led them to drinking bottled water because of their concerns about their water quality since the Land?ll arrived.43 In addition, Complainants state that bathing with city water causes itchiness.44 Lastly, the alleged adverse impacts include risks of injury to health, the cost of bottled water, and anxiety related to the quality of water. Complainants also stated that ?other visitors to the Landfill have noticed water draining from the Land?ll in proximity to the mountain of coal ash on the site that appear to be unpermitted.?15 With regard to water quality, ECRCO found that Arrowhead Land?ll conducts detection monitoring of the groundwater, as regulated, on a semi-annual basis.46 The groundwater analysis is conducted by a third-party, certified laboratory and submitted to ADEM. The detection monitoring system consists of a system of groundwater monitoring wells installed at appropriate locations and depths to yield groundwater samples from the uppermost aquifer in a manner that meets the requisite regulatory criteria for groundwater detection monitoring systems.? As a permit condition. the Land?ll also conducts regular surface water monitoring.? In addition to monitoring, the Land?ll, as required by RCRA Subtitle D, utilizes a composite liner, consisting of two components: a flexible membrane liner (F ML) made of 60-mil thick high density polyethylene (HDPE), installed in direct and uniform contact with an underlying two- foot layer of compacted soil with a hydraulic conductivity of not more than 1 10'7 cmi?sec.? Constructed on top of the composite liner is a leachate collection system that allows for the removal of leachate from the Land?ll for proper treatment and/or disposal.? 4' Letter from Marianne Engelman Lado, Senior Staff Attorney to Velveta Director and Jeryl Covington, Acting Assistant Director, Of?ce of Civil Rights, USEPA. (March 3, 20l6). Information also gathered through telephonic and in-person interviews conducted by ECRCO between 2014 through 20H with Complainants. 431d. at page 8. 43 fall. 4? Id. 45 Id. at page It]. 4? Detection monitoring for appendix constituents is required at units. The monitoring frequency for all constituents listed in appendix I shall be at least semiannual during the active life ofthe facility {including closure) and the post-closure period. 40 C.F.R. ?258.54 and ADEM Admin. Code r. 4O C.F.R. 258 Subpart and ADEM Admin. Code r. 335-]3-4-27. 43 Water Division has issued two General National Pollutant Discharge Elimination System storm water permits and ALGI40902). 4t] C.F.R. Part 253.40 and ADEM Admin. Code r. 335-134-133 and 33543-4213 50 Id Ms. Engelman Lado Page 1] The EPA experts and ECRCO reviewed information from the US. Geological Survey to identify the regional geology and the potential subsurface areas of concerns. This review showed that the Land?ll location has natural features which provide protection for area groundwater. Speci?cally, the Arrowhead Land?ll is underlain by Late Cretaceous-age Coastal Plain sediments comprised of the Selma Group (primarily chalk formations) overlying the Eutaw Formation (sand). Locally, the Selma Group consists of approximately 440 to 563 feet of lower permeability (lxlO-? to lxlU-S cmfsec), gray clay and chalk. The upper 10-20 feet near the ground surface at the Land?ll site consists of brown clay, which represents the weathered portion of the upper formation. The thick chalk formations of the Selma Group serve as a con?ning layer for the underlying Eutaw sands. The Eutaw Formation consists of gray, glauconitic, ?ne to medium grained sand and represents the regional water supply aquifer. Thus, in addition to the Land?ll?s engineered subsurface liner, each of these naturally?occurring underlying geologic layers have a low permeability which reduces the opportunity for releases impacting the groundwater. 5' During the course of this investigation, the EPA experts and ECRCO reviewed permitting and site suitability documents related to the Arrowhead Land?ll. The site suitability documents show a 200l investigation52 to identify water supply wells located within one mile of the then- proposed Land?ll site boundaries.53 The investigation included a reconnaissance by a consultant geologist to identify wells; a review of Geological Society of America (GSA) publications; and interviews with a Perry County Commissioner, City of Uniontown of?cials, ADEM personnel. and local residents or neighbors. The 200] investigation reviewed a document entitled, ?Uniomown Loco! ei?rend Protection Plan.? a second reconnaissance of water wells was performed by a consultant geologist in May 2005. The results of the investigation produced the following: Fourteen wells were identi?ed within one mile of the Land?ll site, and nineteen were identi?ed in the township (ie. Uniontown). 0 Eight of fourteen wells located within a mile of the site were reportedly either not in use or supplied water for agricultural purposes. 0 A municipal drinking water system is supplied by three wells (as of 2001-2002) located in and east of Uniontown. The municipal system wells are located between two to three miles northwest of the existing disposal cells of the Land?ll, and are hydraulically upgradient and/or hydraulically cross-gradient from the Land?ll site. These wells produce groundwater from the Eutaw Formation aquifer and reportedly range in depth from 915 to 1,300 feet. 0 Water from the municipal system is used by the Uniontown Utilities District, which supplies water to southern Perry County. The supply system serves the residents and businesses in Uniontown, plus rural residents within about ?ve miles of town. 5? Jordan. Jones Goulding, lnc., Solid Waste Permit Application Volume Site Analysis Perry County Associates Land?ll Perry County, Alabama, March 2002, Enforcement and Compliance Information eFile File Name 17668_53_03_1 05_200203 .pdf. 52 Id 53 Jordan, Jones &Goulding, lnc., Soiiri Waste Permit Appiicarion Volume #2 Landfill Dasign Operations Pia? or Femr County Associates September 2005, Enforcement and Compliance Information eFile File Name _Application.pdf Ms. Engelman Lado Page 12 Ofthe fourteen wells identi?ed within one mile of the Land?ll site, local residents or neighbors veri?ed that at least four (4) wells located south and southeast of the then- proposed Land?ll site (122., along CR-l?Cahaba Road and (IR-21) were in use (in 2001- 2002). The type(s) of usage of the groundwater from these wells agriculture, potable, other) was not identi?ed. The status of two (2) other wells in that speci?c vicinity was unknown. The investigation con?rmed that three (3) other wells in that speci?c vicinity were no longer in use. Water wells in that speci?c vicinity along CR-l?Cahaba Road and CR-Z 1) for which well information was available were con?rmed to be deep wells drilled into the Eutaw Formation regional aquifer. 0 According to the Perry County Commissioners Of?ce (in 2001-2002}, all of the residents along where these wells have been identi?ed received drinking water from the Uniontown Utilities system. 0 According to Uniontown of?cials (in 2001-2002), drinking water was being supplied to all residents near the then-proposed Land?ll site from the three wells in town (in, via Uniontown Utilities). Based on their review, the EPA experts concluded that there were no signi?cant potential threads) to groundwater resources from the then-proposed land?ll project. Furthermore, the Land?ll site is situated on a thick, dry, relatively impermeable con?ning layer (Selma Group chalks) that serves as a substantial natural barrier between the land?ll?s waste units and the underlying regional Eutaw Formation sand aquifer, and no sur?cial aquifer or saturated zones were identi?ed that could be affected by the land?ll project, or which were interconnected to the uppermost aquifer. In addition, the EPA experts reviewed GeoPlatform resource which is used for mapping, analysis. and collaboration of various sources of data. That review revealed no public utility drinking water intakes from surface water for at least 50 miles from the Land?ll. The EPA experts reviewed reports generated by Arrowhead Land?Il?s consultants and submitted to ADEM. Those reports showed occurrences of barium, acetone, and 2?hexanonne. In multiple semi?annual detection monitoring events. groundwater analysis from the Land?ll detected occurrences of barium, acetone, and 2?hexanonne. Similarly, each of these constituents have been detected in the background groundwater monitoring wells with barium being detected in the groundwater prior to waste placement in the disposal unit. However, the Land?ll?s consultants, HHNT and Bunnell-Lammons Engineering, Inc., and ADEM have concluded that barium is naturally occurring in the soil and groundwater throughout Alabama}:4 Furthermore, the consultants have determined that the source of the volatile organic compounds (VOCs) acetone, and 2-hexanonne) is attributed to the well construction materials black paint of the steel risers). Ultimately, none of the detections exceeded maximum concentration levels 5? Memorandum from Wesley S. Edwards, ADEM Groundwater Branch to Phillip D. Davis, ADEM Solid Waste Branch, February 2 l, 2012, Enforcement and Compliance lnforrnation eFile File Name 17668_53- Enforcement and Compliance Information eFile File Name 05_20 2 55 Enforcement and Compliance lnforrnation e?le File Names l?663_53- 03_105_2or lO4l3__MONl_GW_rpt.pdf. iti4i4__MONi_Gw_Rpt.pdf. ?663?53- Ms. Engelman Lado I Page 13 ECRCO notes that, in accordance with the prescribed regulations, Arrowhead Land?ll performed annual statistical analyses of the groundwater to determine whether a release of leachate had occurred-?3 The statistical analyses do not show evidence of a statistically signi?cant increase over background groundwater quality or a release of leachate from the Arrowhead Land?ll, and accordingly no impact to groundwater. Furthermore, ECRCO reviewed materials showing that no National Pollutant Discharge Elimination System (NPDES) permitted discharges from the Land?ll were above the MCL. Therefore, ECRCO was not able to establish a causal connection between the adverse harms alleged and permitting actions underlying the May 2013 issues and the operations of the Arrowhead Land?ll. While compliance with environmental laws does not necessarily constitute compliance with federal civil rights laws, EPA recognizes a number of forms and types of evidence that could establish causation, including scienti?c proof of a direct link, prediction of potentially signi?cant exposures and risks resulting from stressors created by the permitted activities or other sources, and other complex methodologies.? In this case, ECRCO also considered the complaint, supplemental information, information from a site visit, interviews, a review of ADEM's regulations and administrative codes, permitting documents, inspection reports, studies, and water sample reports. Here, the site-speci?c information did not establish that any of the alleged harms were caused by the permitting actions. Because causation was not established, and therefore no prima facie case of discrimination, ECRCO did not examine disparity or adversity. - Coal Ash ECRCO did not accept for investigation, as part of the May 2013 issues, an issue regarding coal ash. However, during subsequent conversations with Complainants, Complainants provided more details about current coal ash concerns and its possible adverse health impacts on the community given that Arrowhead Land?ll is permitted to accept and maintain coal ash. Some of 108 i7668_53- barium detected), l?668_53- and lO_MONI_GW_Rcvised_Rpt- Fall_20 2.pdf. 5" Each ofthe analyses were completed in accordance with Statistical Analysis of Groundwater Monitoring Data as RCRA Facilities-Uni?ed Guidance (March 2009) and solid waste management rule 335-13- if the owner or operator determines, pursuant to 40 C.F.R. ?253.53(g) documents that there is a statistically signi?cant increase over background for one or more ofthe constituents listed in appendix I. the owner or operator: (1) Must, within l4 days ofthis ?nding, place a notice in the operating record indicating which constituents have shown statistically signi?cant changes from background levels, and notify the State director that this notice was placed in the operating record; and Must establish an assessment monitoring program meeting the requirements of 40 C.F.R.258.55 within 90 days except as provided for in paragraph ofthis section, and The ownen'operator may demonstrate that a source other than a unit caused the contamination or that the resulted ?'om error in sampling, analysis, statistical evaluation, or natural variation in ground-water quality. If a successful demonstration is made and documented, the owner or operator may continue detection monitoring as speci?ed in this section. If. after 90 days. a successful demonstration is not made, the owner or operator must initiate an assessment monitoring program as required in 40 C.F.R. 253.55. 5? U.S. Department ofJustice Title VI Legal Manual, Section VII (Proving Discrimination Disparate impact), at at Ms. Engelman Lado Page 14 the described health impacts include respiratory problems, including coughing, severe stomach problems, and concerns regarding water quality in the area surrounding the Arrowhead Land?ll.53 These concerns related to both air and water. Regarding these concerns, ECRCO found that on July 201 I, the ash disposal area of the Arrowhead Land?ll was closed utilizing a Resource Conservation and Recovery Act (RCRA) Subtitle ?nal closure system to encapsulate the waste.? The ?nal closure system consisted of a liner and a layer of soil capable of sustaining a vegetative cover to control erosion. ADEM certi?ed the partial closure of the ash disposal area on October I l, 201 l. The ?nal closure system is designed to minimize the in?ltration of surface water from entering the disposal cell and minimize erosion. For example, to date the groundwater monitoring system has not detected a release from this disposal unit, the ?nal closure system is stabilized, and there is no evidence of liner failure. There is insuf?cient evidence that in its encapsulated state the coal ash is causing any alleged environmental and health effects. Therefore, ECRCO was not able to establish a causal connection between the adverse harms alleged and permitting actions underlying the May 2013 issues and the operations of the Arrowhead Land?ll. Because there is no causal connection, and therefore no prima facie case of discrimination, ECRCO did not examine disparity or adverse harm. Vectors The Complainants alleged quality of life impacts due to the increased populations of flies and birds associated with the Arrowhead Land?ll Operations. ECRCO did not complete an on-site evaluation of the Arrowhead Land?ll?s Operations or conduct interviews of the Land?ll manager or certi?ed operators as part of this complaint investigation. However, ECRCO reviewed available records, including the Land?ll?s operating plans,60 permit requirements, such as cover requirements and special waste approvals, ADEM inspection records. and the Land?ll's leachate management procedures??l in an attempt to identify possible operational irregularities or violations that may result in the alleged quality of life harms. At the time of review, the permitting documents did not show any occurrences of active leachate breakouts which could generate or attract an increase in the vector population; 5? Letter from Marianne Engelman Lado, Senior Staff Attorney, Earthjustice and Matthew R. Baca, Associate Attorney, Earthjustice Northwest Of?ce to Velveta GolightIy-Howell, Director, Of?ce of Civil Rights and Jeryl Covington, Acting Assistant Director, Office of Civil Rights. US. Environmental Protection Agency, page 13. (March 8, 2916). Complainants also discussed this issue during telephone interview conducted in 20 [6 and 2017. 59 40 C.F.R. 258 Subpart and ADEM Admin. Code r. 5? Permit Renewal Application for Arrowhead Land?ll Permit #53-03 for Perry County Associates, LLC Perry County, Alabama Revised April 20: 1, Volume 1 of2, ADEM File Name: [7668;3- and, Permit Renewal Application for Arrowhead Land?ll Permit #53-03 for Perry County Associates, LLC Perry County, Alabama December Volume 2 of2, ADEM File Name; 6' Hodges, Harbin, Newberry Tribble, Inc. February 15, 2010 correspondence to ADEM, Perry County Associates Land?ll, Leachate Handling Procedures, HHNT Project No. 6004-01040, ADEM File Number l?638_53- 03_ 105_2{} 1002 7_CORR_Leachate_H and_Proc.pdf. Ms. Engelman Lado Page 15 nor did the permitting documents produce evidence of distressed vegetation being identi?ed along the sideslopes of the Land?ll during routine inspections. The records did show that the Land?ll?s former leachate generation rate was 50,000 to 100,000 gallons per day, which also included management of an in?ux of storm water into the collection The Land?ll employed techniques to reduce the leachate generation rate by 35,000 gallons per day through operational changes that included segregating storm water via the utilization of rain covers, by continuing solidi?cation, and recirculating leachate by direct discharge into the working face or through injection wells within the cells.63 Reports showed that the remaining generated leachate was transported by tanker truck to publicly-owned treatment works for treatment and disposal.64 Furthermore, and as previously stated above, the Arrowhead Land?ll operates 25 solar powered gas vent flares for the land?ll leachate collection system cleanout vents to mitigate odors that could attract vectors. ECRCO was unable to identify any functions related to leachate management that could result in the reported increased populations of ?ies and birds. The Arrowhead Land?ll?s waste acceptance provisions include nonhazardous solid wastes, noninfectious putreseible and nonputrescible waste, and Special waste including asbestos, foundry sand, petroleum contaminated waste, and municipal solid waste ashfi5 As an Operational requirement, the Land?ll con?nes and compacts the waste within the smallest working face of the disposal unit having a vertical thickness of less than eight (3) feet? During periods of transition between former and newly constructed cells and for the management of construction and demolition materials, the Land?ll received permitting variances from ADEM for the operation of two (2) working faces. ECRCO was unable to identify any functions related to the waste acceptance provisions or the waste placement requirements that could result in the alleged increased populations of ?ies and birds. At the conclusion of each day?s operations, the Arrowhead Land?ll is required to cover the daily operating area with a minimum of six (6) inches of compacted earth or other alternative daily cover (ADC) materials.? ADEM has approved the following alternative daily covers for the Arrowhead Land?ll: tarps, coal combustion by?products from electrical generators. petroleum contaminated soils, automotive shredder residue, and As permitted, some of the ADCs have storage and placement limitations to prevent contact storm water runoff from leaving the limits of the lined cell area. ECRCO was unable to identify any functions related to the daily cover requirements or the utilization of ADCs that could result in the alleged increased populations of ?ies and birds. Therefore, ECRCO was not able to establish a causal connection between the adverse harms alleged and permitting actions underlying the May 2013 issues and the operations of the Arrowhead Land?ll. While compliance with environmental laws does not necessarily constitute 63 it'd ?54 id. ?5 Arrowhead Permit Modi?cation Enforcement and Compliance Information eFile File Name l?688_53- 03_l05_20 23, 20l2); Arrowhead Land?ll Permit Variance Enforcement and Compliance Information eFile File Name: 17, 2013) 56 Id. 57 ADEM Admin. Code r. Ms. Engelman Lado Page 16 compliance with federal civil rights laws, EPA recognizes a number of forms and types of evidence that could establish causation, including scienti?c proofof a direct link, prediction of potentially signi?cant exposures and risks resulting from stressors created by the permitted activities or other sources, and other complex methodologies.68 In this case, ECRCO also considered the complaint, supplemental information, Land?ll?s operating plans, permit requirements, such as cover requirements and special waste approvals. ADEM inspection records, and the Land?ll's leachate management procedures. Here, the site-speci?c information did not establish that any of the alleged harms were caused by the permitting actions. Because causation was not established, and therefore no prima facie case of discrimination, ECRCO did not examine disparity or adversity. Non?Health Related Impacts I Degradation of Cemetery During the course of the investigation, Complainants raised concerns regarding how decision to permit Arrowhead Land?ll has adversely affected the ability of the members of the Uniontown community to visit New Hope Church Cemetery. Speci?cally, Complainants stated that the proximity of the Land?ll interferes with community members visiting the Cemetery due to acrid odor from the Land?ll, the installation of water monitors on Cemetery grounds, failure to maintain access to the Cemetery premises and disturbing the Cemetery grounds with the use of heavy equipment. In addition, Complainants state that permitting actions failed to ensure that the Cemetery was protected from the aforementioned instances of interference. ECRCO investigated this issue by visiting the Cemetery in August 2014 and by reviewing information submitted by Complainants, including pictures, documents submitted by ADEM and Green Groups Holdings, LLC. review found that the owners of the Arrowhead Land?ll owned the Cemetery property at the time Complainant?s ?led their Complaint and for some period prior. The Cemetery property, however, was never part of the ADEM-permitted Arrowhead Land?ll and the Land?ll maintained a minimum 100-foot buffer between the waste disposal unit and its property boundaries. In January 2016, the Arrowhead Land?ll conducted an initial reconnaissance level site visit in which it was determined that clearing was needed of unwanted growth to accurately de?ne the cemetery boundaries. During this visit funerary objects and historic, ornamental, or traditional landscape features and planting were identi?ed as well as an older split cedar post and a barbed wire fence. According to this report, all objects were marked and left in place where they were found. In February 2016, ADEM approved the Land?ll?s request to reduce its permitted Land?ll property by ?3.12 acres that surrounded the Cemetery. The Land?ll moved the 100-foot buffer boundary to maintain compliance with separation requirements and then deeded this ~3.12 acres parcel, along with the Cemetery property, to the New Hope Cemetery Foundation. Furthermore, this reduction in acreage required a minor permit modi?cation to relocate required monitoring elements four (4) methane monitoring points] located along the property boundary within the land?ll?s permitted footprint area, further away from the ?3 US. Department ofJustice Title VI Legal Manual, Section VII (Proving Discrimination Disparate impact). at at Ms. Engelman Lado Page 17' cemetery. ECRCO was not able to establish a causal connection between the adverse harms alleged and permitting actions underlying the May 2013 issues given that the Cemetery was never within the Operational boundaries of the permitted Arrowhead Land?ll property that ADEM permitted. Also, ADEM approved the Land?ll?s request to reduce the Land?ll boundaries by ~3.l2 acres surrounding the Cemetery. Thereafter, Arrowhead deeded this property and the Cemetery to the Cemetery Foundation. Because ECRCO is not able to establish a causal connection, ECRCO cannot determine a prima facie case of discrimination. ECRCO did not examine disparity or adverse harm. Although not relevant to the Title VI analysis discussed above, ECRCO notes that information brought to our attention during this investigation suggests that there is conflicting information and apparent misunderstanding regarding the responsibility for upkeep and maintenance of the cemetery. Although these actions are not legally required, ECRCO believes that the Arrowhead community would bene?t from leadership in initiating conversation between ADEM, the Land?ll, and members of the community to provide information and discuss the 2016 reduction of the permitted Land?ll boundary and clarify the roles and responsibilities related to the overall management of the Cemetery and adjacent preperties. 0 Lack of Fence Around Land?ll Increased Roaming Wildlife Complainants raised concerns that the Arrowhead Land?ll does not have a physical fence that extends around the perimeter of the preperty, resulting in increased wildlife migration between the Land?ll and the community. Complaints assert that a fence would reduce the number of animals entering and exiting the Land?ll preperty. It is unclear what harm is actually being alleged as a result of the alleged ?increased migration" between the land?ll and the community. Based on the evidence presented, it is also unclear why Complainants believe this particular mitigation, a fence, would address the alleged migration of animals. The Arrowhead Land?ll encompasses approximately 980 acres and is permitted to utilize both a natural and an arti?cial (physical) barrier along its perimeter for the purpose of controlling public access and preventing unauthorized vehicular traf?c and illegal dumping of wastes.59 The Land?ll maintains a minimum 100-foot buffer between the waste disposal unit and its preperty boundaries?? ECRCO has determined that there is insuf?cient evidence in the record to establish adverse harm resulting either from the alleged movement of animals or the absence of a fence around the Arrowhead Land?ll. 5" ADEM Admin. Code r.335-l3-4-.19 Access. The ovmer or operator ofthe facility must control public access and prevent unauthorized vehicular traf?c and illegal dumping of wastes by using arti?cial barriers, natural barriers. or both, as appropriate to protect human health and the environment. 7? ADEM Admin. Code r.335-l3-4-.12 Enforcement and Compliance Information eFile File Names and 7663?53-03_ 05_20 [6033 pplication_Drawings.pdf Ms. Engelman Lado Page 18 - Diminution in Home Values Complainants raised concerns related to diminution of property values due to permitting actions underling the May 2013 issues. For its part, EPA has substantial discretion to determine the types of harms, on a case by case basis, that warrant investigatory resources and are suf?ciently harmful to violate Title ECRCO determined that it would not investigate substantively the alleged harm of diminution of property values, in this case. There is insufficient evidence in the record to suggest that permitting actions themselves resulted in a suf?ciently signi?cant harm with regard to property values. II. The 2016 Retaliation Issue In 2016, ECRCO accepted the following additional issue for investigation: Whether actions or inactions, violated 40 C.F.R. 1100, which prohibits intimidating, threatening, coercing, or engaging in other discriminatory conduct against any individual or group because of actions taken andr'or participation in an action to secure rights protected by the non-discrimination statutes OCR enforces. With respect to this issue, ECRCO finds insuf?cient evidence of discrimination based on retaliation. However, as explained below, ECRCO has concerns about the transparency of process for addressing and resolving retaliation complaints, as well as the underlying processes and environmental complaint determinations which form the basis for some of Complainant?s claims of retaliation. Our investigation revealed that failure to provide explanation and clarifying information to Complainants to support its retaliation and environmental complaint determinations lends to an atmosphere where complainants feel that ADEM is inattentive to their concerns about the Arrowhead Land?ll and whether their complaints are handled by ADEM in an impartial manner. Background On August 19, 2016, Complainants in EPA File No. 12R- 1 3-R4 requested to supplement the existing complaint in that matter due to allegations that ADEM, directly and through the actions of Green Group Holdings, engaged in and failed to protect Complainants from a continuing practice?2 of retaliation and intimidation.B The Complainants provided additional clarifying 7' See Cheater, 469 U.S. at 293-94: "Title VI had delegated to the agencies in the ?rst instance the complex determination of what sorts ofdisparate impact upon minorities constituted suf?ciently signi?cant social problems, and were readily enough remediable, to warrant altering the practices of the federal grantees that had produced these impacts." See also Alexander v. Sandoval. 532 U.S. 275, 305-6 (2001) (Stevens, .I., dissenting). 7'3 In evaluating the Complainant?s allegations, ECRCD determined that some ofthe discrete alleged acts described by the complainant fell outside ofthe ISO-day regulatory ?ling requirement. (40 CPR. 7.120) ECRCO analyzed these as part of an alleged continuing discriminatory practice. See Case Resolution Manual (Jan. 201?), at 1 T4) l_20[ lpdf. ?The complainant must allege facts that are suf?cient to indicate either a series of related, discrete acts of which one occurred within the lilo-day ?ling period or a systemic policy or practice that operated within the lS?-day period." 73 Letter from Marianne Engelman Lado, Senior Staff Attorney. Earthjustice to Lilian Dorka, Interim Director, Ms. Engelman Lado Page 19 information about alleged instances of retaliation in a follow up conference call on September 15, 2016. In addition, Complainants submitted information in letters dated December 14. 2016. and July 28, 2017, which included speci?c examples and claims of ?a broader pattern of intimidation and irregularities in complaint process??4 ECRCO also conducted an interview with one of the Complainants on September 7, 201 7. Legal Standard The Title VI implementing regulation at 40 C.F.R. 7.100, provides that applicant, recipient, nor other person shall intimidate, threaten, coerce, or discriminate against any individual or group, either: For the purpose of interfering with any right or privilege guaranteed by the Acts of this part, or Because the individual has ?led a complaint or has testi?ed, assisted or participated in any way in an investigation. proceeding or hearing under this part or has opposed any practice made unlawful by this regulation.?T5 To establish that retaliation has occurred, ECRCO ?rst must determine whether: (1) An individual engaged in protected activity of which the recipient was aware; (2) the recipient took a signi?cantly adverse action against the individual; and (3) a causal connection exists between the individual's protected activity and the recipient's adverse action.m If all of these elements are present, a prima facie case of retaliation has been established and ECRCO then inquires whether the recipient had a legitimate, non-retaliatory reason for taking action that was adverse. ECRCO then analyzes the evidence to determine whether the offered reason is merely an excuse or pretext for retaliation.? In addition, Title Vl?s prohibition on retaliation may extend to third parties,T8 which may include Of?ce of Civil Rights, U.S. Environmental Protection Agency. (August 19, 2016). 3? Letter from Marianne Engelman Lado, Visiting Clinical Professor of Law, Environmental Justice Clinic, Yale Law School to Lilian Dorka. Director. External Civil Rights Compliance O?ice, Office ofGeneral Counsel. U.S. Environmental Protection Agency Headquarters, at p? (July 23, 2017). See also Letter from Marianne Engelman Lado, Senior Sta??Attomey, Earthjustice to Lilian Dorka, Acting Director, Of?ce ofCivil Rights, U.S. EPA. (December 14, 2016). 7'5 40 C.F.R. 7.100. Title V1 gives authority for this investigation. See Peters v. lenney, 32? F.3d 307. 316-[8 (4th Cir. 2003) (concluding that under the Supreme Court?s decision in Sullivan v. Little Hunting Park, lnc.396 US 229 (1969) (a prohibition on discrimination should bejudicially construed to include an implicit prohibition on retaliation against those who oppose the prohibited discrimination) (internal citations omitted). 7" U.S. Dept. ofJustice Title VI Legal Manual, Section (Proving Discrimination Retaliation) at see also Peters v. Jenney, 327 F.3d 307, 320 (4th Cir. 2003) (internal citation omitted); Emeldi v. Univ. ofOregon, 673 F.3d 1218. I223 (9th Cir. 2012} {applying Title VII framework to establish a prima Tacie case ofretaliation under Title Palmer v. Pen?eld Cent. Sch. Dist, 918 F. Supp. 2d 192, 199 (W.D.N.Y. 2013): Kimmel v. Gallaudet Univ. 639 F. Supp. 2d 34, 43 (D.D.C. 2009); Hickey v. Myers, 852 F. Supp. 2d 257, 268 (N.D.N.Y. 2012); Chandamuri v. Georgetown Univ.. 224 F. Supp. 2d 71. 84 (D.D.C. 2003). 77' See, rag. Patterson v. McLean Credit Union, 49! U.S. 164, 186-36 (noting the framework for proot" developed in civil rights cases), citing. Texas Dept. ofCommrmitv A?oirs v. Bur-dine, 450 U.S. 248 (i981); McDonneiI Dougie: Corp. v. Green, 41 U.S. 292 (1923); see uiso, Bowers v. Bd. of Regents ofthe Univ. Sys. ofGa., 509 Fed. Appx. 906. 912 (1 1th Cir. that in a retaliation claim under Titles Vi and 1X, an adverse action is one that would dissuade a reasonable person from making or supporting a claim ofdiscrimination)(citing. Burlington Northern Santa Fe Ry. v. White. I26 2405, 2415 (2006)). See 40 C.F.R. 7.!00 (stating that applicant. recipient, nor other person shall intimidate, threaten. coerce, or discriminate against any individual or group. . (emphasis added). See niso, 28 C.F.R. 42.10763) (Department Ms. Engelman Lado Page 20 lower-level recipient employees, program bene?ciaries or participants, organizations with a relationship to the recipient such as contractors, and others.W Recipients have two key obligations related to third party retaliation: ?rst, to protect individuals from potential retaliation, recipients are obligated to keep the identity of Complainants con?dential except to the extent necessary to carry out the purposes of the Title VI regulations, including conducting investigations, hearings, orjudicial proceedings; and second, recipients must investigate and respond when a third party engages in retaliatory conduct that Title VI prohibits. 3? As with other types of third party conduct, such as harassment, the extent of the recipient?s obligation is tied to the level of control it has over the bad actor and the environment in which the bad acts occurreds' EPA makes these determinations on a case-by-case basis in light of the facts and totality of circumstances in a particular case. Allegation 1: Response to Complainant?s March 25, 20.1 6 Letter Complainants alleged that ADEM failed to investigate allegations of intimidation and retaliation by permittee, Green Group Holdings which Complainants brought to attention through correSpondence dated March 25, 2016.83 Speci?cally, Complainants asserted that Green Group Holdings threatened to take legal action against ?community members? speaking out about the threats and injuries endured and perceived in the town,?33 including statements about alleged desecration of New Hope Church Cemetery and alleged unpermitted discharge leaving Arrowhead Landfill.34 In addition, Complainants alleged that Landfill staff followed and observed community members and scientists near the Land?ll in a way that Complainants perceived as threateninggj Also, Complainants allege that the Land?ll disrupted the grounds at the New Hope Church Cemetery ?by using a bulldozer to uproot trees, push up mounds of dirt, and widen a one-lane path into a 30 to 40-foot roadway through the cemetery grounds, possibly covering up some of the graves in the process.?86 ADEM responded to the March 26, 2016 complaint about alleged retaliatory conduct by its of Justice regulations); 34 C.F.R. {Department of Education regulations): US. Dept. of Justice Title VI Legal Manual, Section (Proving Discrimination Retaliation) (EMS), at 3" US. Department ofJustice Title VI Legal Manual, Section Proving Discrimination- Retaliation (EMS). at RU id. 3' fol. Citing, Dm'is Monroe (In: 8d. UfEdtr?L?., 526 LLS. 629, 644 i 999}. 33 Letter ?-om Matthew R. Baca, Associate Attorney, Earthjustice Northwest Office and Marianne Engelman Lado. Senior Staff Attomey, Earthjustice to Lance LcFleur, Director, Alabama Department of Environmental Management. (March 25, 20 33 I'd. 5? Letter from Marianne Engelman Lado, Senior Staff Anomey, Earthjustice to Lilian Dorka, Interim Director, Of?ce of Civil Rights. U.S. Environmental Protection Agency. at Exh. 6 (August 19, 20l6). 35 Letter from Matthew R. Baca, Associate Attorney, Earthjustice Northwest Of?ce and Marianne Engelman Lado, Senior Staff Attorney. Earthjustice to Lance LeFleur, Director. Alabama Department of Environmental Management. {March 25, 2016). 86 Id. Ms. Engelman Lado Page 21 permittee. Green Group Holdings, in a letter to Earthjustice on April 3. 2016. 5? ADEM stated that it reviewed the information and determined not to become involved in the dispute between Complainants and Green Group Holdings. ADEM explained that its permittee remained in compliance with the conditions set forth in the permit and further stated that New Hepe Church Cemetery property is outside the boundaries of the Land?ll. Therefore, according to ADEM. any activities occurring at the Cemetery are outside the purview of the permit and further constitute a private dispute about libel and slander. which has nothing to do with Complainant?s Title VI complaint. As a result, ADEM concluded that it would not get involved in the matters brought forth by the Complainants. As to Allegation l. ECRCO has determined that the Complainants engaged in a protected activity when they ?led a Title VI administrative complaint with EPA alleging discrimination on the basis of race in a letter dated May 20. 2013.83 These activities are rights and privileges guaranteed by Title VI and implementing regulation that are protected from retaliation.89 Although it appears that ADEM may not have handled the complaint through its nondiscrimination grievance procedures. ECRCO has found insuf?cient evidence to clearly establish a causal connection between the alleged adverse action (failure to investigate) and the protected activity of ?ling a Title VI complaint. In particular, there is no evidence that apparent failure to address the Complainant?s retaliation complaint through its nondiscrimination grievance procedures in March 2016 was motivated by Complainant?s Title VI complaint ?ling in one 2013. 9? other than the assertion by the Complainants that it was so.? As a result, there is no causal connection between the protected activity and the adverse action to support a prima facie showing of retaliation. Notwithstanding conclusion of insuf?cient evidence of a violation. ECRCU has concerns about lack of transparency regarding the process it utilized to address this retaliation complaint. In analyzing this issue, ECRCO specifically asked ADEM whether it has a process/?procedures for addressing and responding to claims of retaliation. intimidation. harassment or other misconduct by permitted facilities against community members. ADEM responded by referring generally to its Nondiscrimination Statement and provided a copy of its i? Letter from Lance R. LeFleur. Director. ADEM to Matthew R. Boca. Esq. and Marianne Engelman Lado. Esq.. Earthjustice. (April 8. 2016). 3? Letter from David A. Ludder to Vicki A. Simons. Director. Of?ce of Civil Rights. US. Environmental Protection Agency Re: Title VI Civil Rights Complaint and Petition for Reliefor Sanction Alabama Department of Environmental Management Permitting ofArrowhead Land?ll in Perry County. Alabama (EPA OCR File No. 01R- 12-R4). (May 30. 2013}. 39 See, Peters v. Jamey. 327 F.3d at 320-21 (applying the same meaning to ?protected activity? in the Title VI context as in other civil rights cases. which is opposition to an unlaw?il practice that complainant has reason to believe has occurred). citing. Bigge v. Albertson tnc..894 F.2d 1497. [503 (l Cir. l990}. 903429, Jones v. GulfCoast Health Care of Del.. LLC. 854 F.3d l26], [2?1 (l Cir. (noting that temporal proximity between a protected activity and an adverse action may be suf?cient to establish a claim of retaliation. but it?temporal proximity alone is relied on. it must be ?very close? to establish causation)(interna citations omitted) 9' See US. Department oflustice Title VI Legal Manual. Section Proving Discrimination- Retaliation at (there must be evidence ofdiscriminatory intent that does not require support ?'orn inferences}. Ms. Engelman Lado Page 22 Environmental Complaint Process (SOP #9303)?2 This SOP documents the process for ?ling environmental complaints with ADEM, but does not address the process for ?ling and investigating claims of discrimination, including those involving retaliation and intimidation. The complaint at issue here, involving allegations of retaliation and intimidation by Green Group Holdings, is one of intentional discriminationg3 which is the type of complaint that should be handled through a recipient?s nondiscrimination grievance procedures."M The nondiscrimination regulation requires that recipients adopt grievance procedures that assure the prompt and fair resolution of nondiscrimination complaints.95 Although there is insuf?cient evidence in the record to conclude that ADEM did not conduct an appropriate review ofthis alleged retaliation action, use of its grievance procedures, rather than its apparent use of its Environmental Complaint Process, would have provided Complainants with greater clarity and transparency and would have provided ADEM an opportunity to address this issue at the state level. Given that it appears ADEM handled this particular complaint outside of its nondiscrimination grievance procedures, ECRCO has concerns regarding whether ADEM will utilize its grievance procedures to process retaliation complaints going forward. As a result, although not legally required under these speci?c facts, ECRCO strongly recommends that ADEM clarify and explain in the grievance procedures themselves that ADEM will investigate and resolve retaliation and intimidation claims in a prompt and impartial manner under the grievance procedures, just as ADEM states it would do so with any other discrimination claim?6 Although not legally required, ECRCO ?thher recommends that grievance procedures inform the public that during the investigation of all claims. including retaliation, the ?preponderance of the evidence? standard will be applied. Allegation 2: Environmental Management Commission Meeting Complainants alleged that some of them attended the Alabama Environmental Management Commission (EMCYN meeting held on August 16, 2013, to present to issues that were occurring 91 Email from Tom Johnston, General Counsel. ADEM to Lilian Dorica. Director. External Civil Rights Compliance Of?ce. EPA. (September 22, 2017) (attaching Environmental Complaint Process SOP #9303 Rev. 0, Version Date December 6. 20! 93 See. Jackson v. Birmingham Ba'. ofEdac., 544 U.S. 167, 173-74 (2005) (?nding that ?[r]etaliation is, by de?nition. an intentional act and a form ofdiscrimination because the complainant is being treated differently). 94 See ADEM stated that its grievance procedures have not changed in any substantial way since 2004. See Letter from Lance R. LaFleur. Director, ADEM to Lilian Dorka, Acting Director, Office ofCivil Rights, EPA (September I, 2016), at Attachment 2 - Response to Questions. 95 40 C.F.R. 7.90 (each recipient with 15 or more employees shall adopt grievance procedures that assure the prompt and fair resolution ofcomplaints). 9" See 40 C.F.R. 7.l00 (stating that applicant, recipient, our other person shall intimidate. threaten. coerce. or discriminate against any individual or group. . (emphasis added}. ?7 The EMC is the oversight body for ADEM and serves in a quasi-judicial role in hearing appeals ofadministrative actions (Ala. Code 22-22A-6 and 7; ADEM Admin. Code r. 3354-1-03 and ADEM Admin. Code chap. 335-24). Email from Tom Johnston, General Counsel, ADEM to Lilian Dorka. Director. External Civil Rights Compliance Of?ce. (August 9, 201?). ADEM's website adds that [t]he EMC is composed of seven members who are appointed to six-year terms by the governor and subject to con?rmation by the Alabama Senate. EMC is charged with developing the state's environmental policy, hearing administrative appeals of permits, administrative orders and variances issued by the Department, adopting environmental regulations and selecting an ADEM Ms. Engelman Lado Page 23 in Uniontown related to Arrowhead Land?ll and the wastewater treatment plant. Complainants further alleged that they were denied the opportunity to speak by board members due to the pending Title VI complaint? For its part, ADEM denied that it or the EMC engaged in retaliatory conduct at the EMC meeting. Regarding Allegation 2, ECRCO determined that the Complainants engaged in a protected activity when they filed a Title VI administrative complaint with EPA alleging discrimination on the basis of race.99 ECRCO also found that the EMC took an adverse action against the Complainant(s) by denying them the opportunity to present during the August 2013 meeting. Complainants presented evidence that initially they would be allowed to Speak at the EMC meeting, including providing a meeting agenda which made reference to their request to Speakmo However, EMC ultimately precluded them from speaking due to their part in an active Title VI complaint dealing with the Arrowhead Land?ll. ?ll Complainants? participation in an active Title VI complaint and their preclusion from speaking for that reason provides the causal connection between the protected activity and the adverse action. Thus, ECRCO determined that the evidence supports the establishment of a prima facie case of retaliation. Once a prima facie case has been established, the recipient must show that there was a legitimate non-discriminatory/retaliatory reason for the adverse action and that it was not a pretext for discrimination. As part of its investigation of this issue, ECRCO reviewed the August 16, 2013 hearing minutes, and requested further information from ADEM regarding the justi?cation for the decision to preclude Complainants from speaking at the meeting. On August 9, 2017, ADEM provided its response. In doing so, ADEM referred to its rule which restricts public comments related to pending matters that are being addressed in another forum for investigation and determination. speci?cally, ADEM Admin. Code Rule states: After consideration of agenda items the Commission may consider comments from the members of the public. While the Commission encourages public participation at its meetings, for reasons of fairness and due process to the parties in administrative and legal proceedings involving the Commission, it speci?cally discourages the members of the Commission from engaging in the non-deliberative discussion of any case or legal proceeding pending before the Commission, or of any decision by the Commission or matter involving the Commission or Department that is subject of any ongoing case or legal proceeding. Parties to such proceedings and members of the general public shall director. See . 93 Conference call discussion between EPA representatives and Complainants on September 15. 2016. 9" Letter from David A. Ludder to Vicki A. Simons, Director, Of?ce ofCivil Rights, US. Environmental Protection Agency Re: Title VI Civil Rights Complaint and Petition for Reliefor Sanction Alabama Department of Environmental Management Permitting of Arrowhead Land?ll in Perry County, Alabama (EPA OCR File No. 01R- 12-R4). (May 30, 2013). EMC Meeting Agenda (August 2012}, at 13EMC MeetingFinalMinutes 1 0-1 8-1 3.pdf. '01 EMC Meeting Final Minutes, pp. 23-30 (August 13, 2013). ?33 ADEM Admin. Code Rule found at Ms. Engelman Lado Page 24 not be permitted to use the public participation opportunities herein provided by the Commission to circumvent administrative or judicial procedures which specify the time and manner of presenting testimony, evidence, or comment to the Commission in a formal manner designed to provide due process to all parties. Thus, according to ADEM, Complainants were not permitted to speak at the meeting because to do so would allow discussion relating to an ongoing case involving ADEM, and was not done so in retaliation for them ?ling a Title VI complaint. To support its position, ADEM provided additional examples where others who had pending proceedings unrelated to Title VI were likewise denied an opportunity to present for similar reasons pursuant to the same Rule?)3 ECRCO has reviewed the evidence regarding Allegation 2 and determined that the decision to preclude Complainants from presenting at the August 16, 20] 3 EMC meeting was for a legitimate, non-retaliatory reason. In addition, ECRCO has determined that the information presented by ADEM shows that this same policy was applied in other circumstances during EMC meetings. That is, there is evidence to support that during other EMC meetings, prospective speakers were denied the opportunity to speak about other matters that were the subject of other pending administrative and legal proceedings, and also not Title VI matters. Thus, there is suf?cient evidence to support ADEM's claim that the Policy is applied evenly in situations involving pending administrative and legal proceedings, regardless of the subject matter and thus, not a pretext for discrimination against the Complainants on the basis of engaging in the protected activity. Accordingly, ECRCO has determined that there is insuf?cient evidence to support a claim of retaliation against ADEM on this issue. Allegation 3: to En vironmenrni Concerns Raised by Complainants The Complainants have alleged that ADEM has engaged in retaliation based on several incidents relating to processing of environmental complaints from Complainants. For example, one of the Complainants stated that he visited ADEM offices in August 2016 for a public meeting. After the meeting, the Complainant approached an ADEM staff member and attempted Email from Tom Johnston. General Counsel, ADEM to Lilian Dorka, Director, External Civil Rights Compliance Of?ce. (August 9, 201?). The email included an attached document identi?ed as Exhibit A (archived minutes of EMC Meeting on l?il6i?2009], Transcript Page Nos. 67-69. Additionally, the response included the following links to transcripts to show similar instances in which individuals who were not involved in Title VI matters were not allowed the opportunity to speak in front ofthe EMC due to pending matters that were currently being handled under a separate forum. Please ?nd specific examples at the following web addresses: 9- l3EMCMeetingFinalMinute36-2l 3.pdf. Transcript at pp. 94-95; SEMCMeetingFinalMinutes ltl-l 8-13.pdf. Transcript at pp. 27-30; 0- 8? 3EMCMeetingFinalMinutes 2- 3- 3.pdf, Transcript at pp. 37?33: 5-14.pdf, Transcript at pp. 42-45; Transcript at pp. 52-? l; 7- 15.pdf. Transcript at pp. l33-147 Ms. Engelman Lado Page 25 to ?le an in-person complaint regarding runoff from the Arrowhead Land?ll. According to this Complainant, the ADEM representative stated that ADEM would ?le the complaint for him and follow up. The Complainant asserted that the ADEM staff member never followed up nor provided a complaint number. In investigating this issue, ECRCO reached out to ADEM to ask about its environmental complaint intake process and whether it has a separate or different intake process for complaints ?led in person at ADEM of?ces. In response, ADEM referred ECRCO to its internal document Environmental Complaint Process (SOP #9303).104 Based on the Environmental Complaint Process ?ow chart, in-person complaints to ADEM should be assigned to a staff member for entry into a complaint database for investigation. Subsequently, the assigned staff member is to communicate with the complainant to provide a complaint number and obtain additional information, as needed.? ECRCO checked e-File system and was unable to locate a complaint from the Complainant around the referenced date, but did ?nd record of several other complaints submitted by the Complainant from 2015 through 2017 concerning water runoff from the Land?ll.?06 In this instance, ECRCO determined that the Complainant engaged in a protected activity related to the ?ling of a Title VI administrative complaint with EPA alleging discrimination on the basis of race. ECRCO also found that ADEM took an adverse action against the Complainant by failing to intake his complaint or follow up with him about his complaint. However, there is insufficient evidence that ADEM failed to intake the complaint due to Complainant?s ?ling of the Title VI complaint because there is evidence of several other instances in which the Complainant was able to submit a complaint in which ADEM provided a complaint number and provided follow-up.? Thus, there is no causal connection between the protected activity and the adverse action to support a prima facie showing of retaliation. The Complainant also asserted that ADEM has shown insuf?cient attention to Complainants who raise complaints about the Arrowhead Land?ll. Speci?cally, Complainants cited to a November 13, 2015 incident where an ADEM employee responded to an environmental complaint submitted by two of the named Complainants by conducting an inspection of the Arrowhead Land?ll.? According to Complainants, they witnessed ADEM employee and a Land?ll representative concluding an inspection. At the time, Complainants stated that they were in the vicinity documenting continuing Land?ll run-off. Complainants were able to get the Environmental Complaint Process SOP #9303 Rev. 0, Version Date December 6, 20] l. Environmental Complaint Process SOP #9303 Rev. 0, Version Date December 6, 201 1. (ADEM Environmental Complaint Process Diagram). Referencing Complaints found against Perry County Associates 20l5-20 7 EFILE ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, at '07 Letter ?'orn David A. Ludder to Vicki A. Simons. Director, Office ofCivil Rights, U.S. Environmental Protection Agency Re: Title VI Civil Rights Complaint and Petition for Relief or Sanction Alabama Department of Environmental Management Permitting of Arrowhead Land?ll in Perry County. Alabama (EPA OCR File No. 0 R- 12-R4). (May 30, 2013). ?33 See fn.95. ?09 Letter from Marianne Engelman-Lado, Visiting Clinical Professor of Law, Environmental Justice Clinic. Yale Law School to Lilian Dorka, Director, External Civil Rights Compliance Of?ce. Of?ce ofGeneral Counsel, U.S. Environmental Protection Agency Headquarters, at pp. 5-6 {July 28, 201?). Ms. Engelman Lado Page 26 attention of the ADEM employee to address their concerns about the runoff] ?3 When the ADEM employee engaged Complainantsthe presence of the Land?ll representative. Complainants perceived this situation as intimidating. In addition, during the November 13 inepection the ADEM employee and the Land?ll representative agreed to allow the Complainants to ride in the back seat of a vehicle on part of the facility grounds, but when one of the Complainants asked to visit Speci?c areas of the Land?ll related to their complaint, the ADEM employee ignored or dismissed their request.? Here, ECRCO determined that the Complainants engaged in a protected activity related to the ?ling of a Title VI administrative complaint with EPA alleging discrimination on the basis of race. 12 ECRCO also found that ADEM took an adverse action against the Complainants by engaging with them in the presence of a Land?ll representative while aware that Complainants had ?led environmental complaints against the Land?ll; however, there is insuf?cient evidence that ADEM handled this inSpection in this manner due to Complainant?s ?ling of the Title VI complaint. Speci?cally, there is no evidence beyond the assertion itself] '3 to suggest that the ?ling of the Title VI complaint in June 2013 was the substantial or motivating reason for how this engagement with Complainants in November 2015 was conducted.1 '4 To this point, ECRCO asked ADEM to explain the circumstances under which the public participate in such environmental inspections; to which ADEM responded that ?there are none."' '5 Furthermore, there is no indication that the Complainants requested to meet with the ADEM employee separately and that the ADEM employee's failure to send the Land?ll representative away was based on Complainant's status as Title VI complainants. Thus, there is no causal connection between the protected activity and the adverse action to support a prima facie showing of retaliation. As another example of alleged inattention to their complaints, Complainants described an instance in which separate individuals ?led an environmental complaint, but received the same complaint number. Complainants identi?ed Complaint No. ik?002wd5e88 as an example of where this occurred. On or about November 1 I, 2015, one of the Complainants called in an Letter from Marianne Engelman-Lado, Visiting Clinical Professor of Law, Environmental Justice Clinic, Yale Law School to Lilian Dorka, Director, External Civil Rights Compliance Office, Of?ce of General Counsel, U.S. Environmental Protection Agency Headquarters. (July 28, 20H). Letter from Marianne Engelman-Lade, Visiting Clinical Professor of Law, Environmental Justice Clinic, Yale Law School to Lilian Dorka, Director, Extemal Civil Rights Compliance Of?ce, Of?ce ofGeneral Counsel, U.S. Environmental Protection Agency Headquarters. (July 23, 201?). ?3 Letter from David A. Ladder to Vicki A. Simona, Director, Of?ce ofCivil Rights. U.S. Environmental Protection Agency Re: Title VI Civil Rights Complaint and Petition for Reliefor Sanction Alabama Department of Environmental Management Permitting of Arrowhead Land?ll in Perry County. Alabama (EPA OCR File No. HIR- l2-R4). (May 30, 2013). ?3 See U.S. Department ofiustice Title VI Legal Manual, Section Proving Discrimination- Retaliation at {there must be evidence ofdiscriminatory intent that does not require support from in ferences). ?4 See, ag. Jones v. Cimijoast Health Care ofDei.. LLC. 8.54 F.3d i26i, t27i {i ith Cir. ZGiYJt?noting that temporal proxintitv between a protected activity and at:I adverse action may be stt?icient to establish a ciaim of retaliation, but iftemporai proximity alone is relied on. it must be "very close to establish causation) (internal citations omitted) ?5 Email from Tom Johnston, General Counsel, ADEM to Lilian Dorka, Director, External Civil Rights Compliance Of?ce, EPA. (September 22, 2017). Ms. Engelman Lado Page 27 environmental complaint about run-off at the Arrowhead Land?ll. This Complainant received Complaint No. 7k-002wd5e88 for his complaint. On or about November 12, 2015, another Complainant called to complain about run-off at the Arrowhead Land?ll, and was give the same complaint number as the Complainant on the day before. Then, on November 13, 2015, still another Complainant complained to ADEM about Arrowhead Land?ll run-off and was also give the same complaint number as the other two Complainants.?i5 ECRCO asked ADEM about its environmental complaint intake process and how it determines whether to give complaints the same complaint number. ECRCO also specifically asked if the logging of complaint No. 7k-002wd5e88 followed the complaint intake process. ADEM responded as follows: ?If similar complaints are received close in time regarding the same subject matter, or if a complaint is submitted by multiple Complainants multiple signatures on a complaint, multiple form letters submitted together), those complaints may be assigned the same number. Whether complaints are assigned the same or different complaint numbers, each individual complainant is provided a complaint number for purposes of follow-up and tracking." '7 In this instance, ECRCO determined that the Complainants engaged in a protected activity related to the ?ling of a Title VI administrative complaint with EPA alleging discrimination on the basis of race.I '8 ECRCO found no adverse action in ADEM assigning similar complaints with the same complaint number. All of the complaints were ?led in consecutive days relating to the same environmental issue. ADEM explained that even though the same complaint number may be given to multiple complaints ?led close in time with similar subject matter. each individual complainant is given the number for purposes of tracking. Accordingly. by referring to the assigned number, Complainants are still afforded the opportunity to follow-up with ADEM to ascertain the progress of their complaints. As a result, there is no adverse action to support a prima facie showing of retaliation. In another instance, a Complainant ?led an odor complaint in March 2016. However, Complainants contend that the odor complaint was not properly investigated because ADEM referred to an insPection of the facility conducted six months prior to the date the complaint was ?led.1 '9 ECRCO asked ADEM how it determines whether a complaint warrants an onsite inspection and how past routine inspections are utilized to investigate newly received ?5 Letter from Marianne Engelman-Lado. Visiting Clinical Professor of Law, Environmental Justice Clinic. Yale Law School to Lilian Dorka, Director, External Civil Rights Compliance Office, Of?ce ofGeneral Counsel, U.S. Environmental Protection Agency Headquarters. at pp. 5-6 (July 28, 20W). ?7 Email from Tom Johnston, General Counsel, ADEM to Lilian Dorka, Director, External Civil Rights Compliance Office, EPA. (September 22, 201?). ?3 Letter from David A. Ludder to Vicki A. Simons, Director, Of?ce of Civil Rights, LLS. Environmental Protection Agency Re: Title VI Civil Rights Complaint and Petition for Reliefor Sanction - Alabama Department of Environmental Management Permitting ofArrowhead Land?ll in Perry County, Alabama (EPA OCR File No. 01R- (May 30. 2013). ?9 Letter from Marianne Engelman-Lado, Visiting Clinical Professor of Law, Environmental Justice Clinic. Yale Law School to Lilian Dorka. Director, Extemal Civil Rights Compliance Of?ce, Of?ce ofGeneral Counsel, U.S. Environmental Protection Agency Headquarters. at p. 8 (July 23, (referencing Complaint l, EFILE ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, at Ms. Engelman Lado Page 28 complaints. ADEM responded and stated that a follow-up inspection was not conducted due to similarity in the complaints and because ADEM was having continuing dialogue with the facility about the complaints and proposed response actions.12D Here, ECRCO determined that the Complainants engaged in a protected activity related to the ?ling of a Title VI administrative complaint with EPA alleging discrimination on the basis of race?! ECRCO also found that ADEM took an adverse action against the Complainants by not speci?cally investigating this odor incident, but instead referring to a previous inspection six months earlier. However, based on explanation that it was addressing the matter with the facility, and in the absence of other evidence suggesting there was another motive, there is insuf?cient evidence that ADEM referred to the prior inspection in resolving Complainant?s odor complaint due to the Complainant?s ?ling of the Title VI complaint. Thus, there is no causal connection between the protected activity and the adverse action to support a prima facie showing of retaliation. Conclusion For the reasons set forth above, the record does not establish a prima facie case of discrimination, with respect to the alleged harms due to failure to meet one or more of the elements of a prima facie case of disparate impact discrimination as specifically discussed with respect to each of the May 2013 issues. Accordingly, ECRCO ?nds insuf?cient evidence to conclude that ADEM violated Title VI and nondiscrimination regulation in regarding permitting actions as alleged. ECRCO also ?nds insuf?cient evidence of discrimination based on retaliation. If you have any questions, please feel free to contact me at (202) 564-9649, by e-mail at dorka.li1ian@epa.gov, or U.S. mail at U.S. EPA, Of?ce of General Counsel, External Civil Rights Compliance Of?ce (Mail Code 2310A), 1200 Avenue. N.W., Washington, 20460. Sincerely, Lilian S. Dorka, Director External Civil Rights Compliance Of?ce Of?ce of General Counsel Letter from Lance R. LeFleur, Director, ADEM to Lilian S. Dorka, Acting Director, Office of Civil Rights, U.S. Environmental Protection Agency. Re: EPA File No. l2R-l?-R4: ADEM Response to EPA Follow?up Information Request. Attachment {September 1,2016}. 13' Letter from David A. Ludder to Vicki A. Simons, Director, Of?ce ofCivil Rights, U.S. Environmental Protection Agency Re: Title VI Civil Rights Complaint and Petition for Relief or Sanction Alabama Department of Environmental Management Permitting of Arrowhead Land?ll in Perry County, Alabama (EPA OCR File No. 01R- 12-R4). {May 30. 2013). Ms. Engeiman Lado CC: Elise Packard Associate General Counsel Civil Rights Finance Law Of?ce Ken Lapierre Assistant Regional Administrator Deputy Civil Rights Of?cial US. EPA Region 4 Page 29