EPA ‘failing’ on environmental justice

EPA is ‘failing’ its environmental justice obligations, civil rights watchdog says

Coal ash was front and center in the U.S. Commission on Civil Rights report.

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CREDIT: FLICKR/Alan Greig

The Environmental Protection Agency is “failing” in its environmental justice obligations while struggling to help poor communities of color facing pollution, particularly coal ash, the U.S. Commission on Civil Rights found in its latest report.

The report said the EPA, known for administrative delay in processing complaints, seems unable to help overly-burdened communities suffering from pollution. The commission also said the EPA drags its feet when faced with environmental justice concerns until forced to do so.

And “when they do act, they make easy choices and outsource any environmental justice responsibilities onto others,” according to the report, which was published Friday.

Based on testimony from the EPA, experts, and scholars, the report examines environmental justice as it relates to EPA’s final coal ash rule, unveiled in late 2014. The report also evaluates enforcement of EPA’s non-discrimination regulations and any related improvements since the commission last reviewed the agency’s environmental justice efforts in 2003.

Coal ash is the by product of burning coal for power. It contains cancer-causing chemicals like arsenic and mercury, and it’s the second-largest form of waste in the United States.

Energy companies for decades put coal ash into usually unlined ditches before filling these so-called ponds with water. This technique was considered the most economic way to store ash while keeping it from blowing away. But following the federal Coal Combustion Residuals rules, new coal ash pits must now be lined, while hundreds of old, unlined pits must be cleaned up if they are found to be polluting groundwater, or if they are attached to an active power plant.

Under the recently approved EPA rules, coal ash is regulated similarly to common trash and didn’t fall under any federal enforcement. The rule was thus crafted so state and citizen lawsuits ensure company compliance.

Two weeks ago, the Senate approved a water infrastructure bill that gives states the authority to implement individual coal ash regulations. The House is likely to debate the bill this week.

Some advocates say Congress’ amendments to the coal ash rule may let polluters follow lengthy timelines or use inefficient methods of closing coal ash pits. Closing pits has become a growing controversy in multiple states as utilities often want to shut pits by capping them in place, while communities call for complete excavation of the toxic waste.

The new USCR report said EPA’s coal ash rule disproportionately affects poor communities, as the system requires already disadvantaged residents to collect complex data, fund litigation, and navigate the federal court system.

These are “the very communities that the environmental justice principles were designed to protect,” the report said, noting the EPA itself knows the percentage of minorities and low income people living within the catchment area of coal ash disposal facilities is disproportionately high when compared to the national average.

“The EPA did not fully consider the civil rights impacts in approving the movement and storage of coal ash,” the report reads.

Coal ash swirls on the surface of the Dan River in 2014, following one of North Carolina’s biggest environmental disasters in its history. CREDIT: AP/Gerry Broome

Among various recommendations, the commission said the EPA should bring on additional staff and clean its backlog of complaints. The commissions also recommended classifying coal ash as “special waste,” and that EPA should help communities enforce the coal ash rule.

Created by Congress in 1957, the United States Commission on Civil Rights is an independent advisory body that investigates and reports on all levels of government to ensure civil rights protection. The commission is comprised of eight members appointed by elected officials, including the president and members of congress. No more than four members can at any one time be of the same political party.

Though the report’s findings are damning, allegations of deficiencies within the EPA are not new. The agency has been criticized for its processes almost since its founding in 1970. Groups often claim the EPA has an inadequate system for solving complaints, or is slow-moving or timid when creating and enforcing rules.

A 2015 Center for Public Integrity report found that since the mid-1990s, the EPA’s civil rights office either rejected or dismissed complaints nine out of 10 times. Most times the office rejected claims without pursuing investigations. On the few occasions that it did investigated, the EPA dismissed cases more often than it proposed sanctions or remedies.

The EPA, like all federal agencies, is required under a 1994 presidential executive order to collect data on the health and environmental effect its actions have on poor communities of color, as well as to develop policies that include environmental justice into their mission.

Lately, the agency has been under fire for a draft study on fracking that said the controversial oil and gas extraction practice has not led to “widespread, systemic” effects on water resources. Most members of the EPA Science Advisory Board have officially questioned the EPA finding, some while noting communities’ numerous complaints about water pollution. On Monday, more than 200 advocacy groups sent a letter to the EPA urging the agency to accept the recommendation of its board.

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