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BIRMINGHAM, Ala.—The question hangs over three Black neighborhoods in industrial north Birmingham that, together, compose the 35th Avenue Superfund site: What does the future hold—revitalization, or relocation? 

The Environmental Protection Agency has all but finished removing toxic soil from the small yards of about 650 homes in Collegeville, Harriman Park and Fairmont. The soil had come decades ago from nearby coke plants as yard fill, but was laced with arsenic, lead and benzo(a)pyrene (BaP), a hydrocarbon, elevating cancer risks. The massive clean-up has now been paused, with just a few difficult-to-access properties remaining. 

But Charlie Powell, who spent 42 of his 70 years in Fairmont and still has property, and family, in the neighborhood, doesn’t think there’s enough left in the communities to save, after decades of pollution from all the surrounding industry—coke, asphalt, cement and lumber—and all the redlining and racist zoning. 

“These neighborhoods are a thing of the past,” said Powell, founder of People Against Neighborhood Industrial Contamination (PANIC), a nonprofit advocating for relocation of residents. He recalled the vibrancy of north Birmingham from his youth. “It’s not there any more, and it’s not ever going to come back.” 

Still, the fight for some measure of environmental justice continues, whatever that might look like. 

The Southern Environmental Law Center announced on Friday that it had given Bluestone Coke, one of the area’s most flagrant polluters, 60 days to stop its alleged discharge of toxic wastewater into Five Mile Creek or face federal litigation. 

More broadly, the EPA is engaged in a reckoning of sorts, trying to assess the “cumulative impacts” of pollution on these three neighborhoods and the extent to which its own lapses may have contributed to the harms.

“It’s one thing to talk about individual permits, and emissions limits on permits and things of that nature, but it’s another thing to talk about the cumulative effect of living in this environment,” said Michael Hansen, executive director of the Greater-Birmingham Alliance to Stop Pollution (GASP). “I have no transparency into this. I have no way of guessing what we might get out of it.”

If there is an archetypal site for environmental racism, the EPA seems to believe this is it: Three black neighborhoods that were mostly zoned, up until the 1950s, “Black only,” Hansen explained, and surrounded by polluting industries. 

“Birmingham chose to ignore the 1917 Supreme Court ruling Buchanan v. Warley that overturned racial zoning ordinances by arguing that threats to peace were imminent and severe if African Americans and whites lived in the same neighborhoods,” a 2019 paper in the International Journal of Environmental Research and Public Health stated. “The need to maintain order overruled the constitutional rights of those involved. Essentially, government policy kept the location racially segregated through zoning ordinances for decades, with racial zoning maps used to guide its commercial and residential planning in the following decades. 

“Heavy industry in this area and the resulting 35th Avenue Superfund site have caused significant environmental pollution over time, leaving residents concerned that their health and well-being are at risk from continued exposure.”

Such overt discrimination continued for more than a century. After the EPA began considering whether to include the 35th Avenue Superfund site on its National Priorities List, a registry of the nation’s hazardous waste sites that can bring additional cleanup funds, an executive of one of the potentially responsible polluters, his attorney and a state representative were all convicted five years ago in a bribery scheme intended to keep the site off the list.

Two years ago, eight senior officials at the EPA received a letter from the agency’s Office of Inspector General, informing them that an audit of the 35th Avenue Superfund site would “determine what actions the EPA has taken—in accordance with its mission, its program goals, and applicable executive orders—to identify and address any disproportionate health effects to disadvantaged communities located on or near a selected site.” 

The audit, called the 35th Avenue Superfund Site Case Study on Cumulative Impacts, was commissioned to address management lapses in the EPA’s approach to environmental justice, as identified in a prior internal study. 

The study found that “with respect to environmental justice, gaps exist in almost all of the EPA’s activities, such as managing air quality, drinking water, toxic releases to surface waters, Superfund sites, emergency response, and environmental education.” The agency needed performance measures, the study reported. 

“For example, in July 2018, we found that the residents of Flint, [Michigan] were exposed to lead in drinking water due to a delayed and inadequate federal response that failed to identify drinking water risks,” the study found. ‘‘We also issued two reports following Hurricane Harvey that demonstrated weaknesses in Region 6’s ability to properly inform environmental justice communities [in Houston] of air, floodwater, and drinking water risks.”

The study showed how budget requests for EPA’s environmental justice efforts had fallen from $13.97 million in the final Obama administration budget in 2016 to $2.73 million in Trump’s final budget, with the Trump administration requesting $0 for such efforts in 2017 and 2018. Throughout that period, Congress kept actual funding at around $6.75 million. 

Lynn Carlson, deputy assistant inspector general, said Friday that a final report by the IG’s Pollution Control and Cleanup Directorate of the Office of Audit is expected by the end of the fiscal year on Sept. 30. She said the 35th Avenue Superfund site was chosen “because it includes multiple industrial facilities and the communities surrounding the site deal with multiple types of pollution in their air, land, and water.”

Powell, the long-time Fairmont resident and executive director of PANIC, thinks the government should offer several thousand residents remaining in the three neighborhoods fair market value for their homes, which he estimates to be between $65,000 and $75,000. 

So many people in the neighborhoods have suffered from cancer, including his wife, Powell said, that the “injustice has to be made right.” 

“They don’t want to relocate us,” Powell said. “My best bet is to try to get these people relocated, and get them as much as I can for the relocation.” 

Hansen, executive director of the other nonprofit active in the area, GASP, takes a more holistic view. “I think there are two tracks, and I don’t think they are mutually exclusive,” he said. “One is, for residents who want to stay, they can stay and revitalize the community, and that would require things like a buffer zone, between the industry and the residents, and pollution reduction, of course, and other quality of life improvements: better infrastructure, more trees, more access to healthy food, and health care—all the things that the neighbors have been begging for.

“And then the other track is relocation,” he said. “Particularly for the people who live closest to plants like Bluestone. Those folks, a lot of them, do want to move. So there’s a split, but both of those things can happen simultaneously. It would be expensive, and someone is going to have to pay for it. And I think industry should be at the table, clearly. But I think the remedies are there.”

The Friday morning announcement by the Southern Environmental Law Firm that it would file suit in federal court in 60 days if Bluestone did not clean up its wastewater discharges came on behalf of two nonprofit clients, GASP and Black Warrior Riverkeeper. The SELC said the company has violated its wastewater permit “more than 390 times and is not maintaining an onsite water treatment facility.”

The SELC said that additional water sampling by Black Warrior Riverkeeper had found unpermitted discharges of Barium, Strontium and E. Coli. The plant temporarily ceased operations in 2021, following citations filed by the Jefferson County Health Department for air pollution permit violations. It has yet to reopen.

“Closed or not, it’s Bluestone’s responsibility to keep contaminated water from flowing off the property,” said Sarah Stokes, an SELC senior attorney. “Companies like Bluestone cannot pollute our air and rivers at the expense of Birmingham communities and businesses.”

Steve Ball, vice president and general counsel at Bluestone Coal, did not respond to a request for comment via email. 

The announcement of new litigation against Bluestone heralded the next chapter in a long legal fight to clean up, if not shut down, the plant.

Bluestone, in existence since 1920 under various previous owners, has the annual capacity to produce 460,000 tons of coke, a high-carbon fuel made by baking coal for smelting iron in blast furnaces.

In 2019, the plant’s previous owner, in financial trouble, sold the facility to Bluestone, a company owned by the family of West Virginia Gov. Jim Justice, whose coal-mining empire was sued by the Justice Department last month to collect $7.6 million in fines and late fees related to strip mining activities. 

The Bluestone plant in north Birmingham is also deeply arrears. 

In December 2022, the Southern Environmental Law Center, representing GASP, and the Jefferson County Health Department filed a consent decree that required Bluestone to pay a $925,000 fine, the largest in the health department’s history. Half would go to improvements in the three Superfund neighborhoods. The decree came after the SELC and GASP collected ambient air samples from the neighborhoods that showed elevated levels of benzene and napthalene, both carcinogens and toxic air pollutants from coke manufacturing. 

Since then, Bluestone has violated the consent decree and owes more than $283,000 in late payments and fines to the Jefferson Department of Health, with fines of $1,000 added daily. If those payments have not been made by the end of this month, a contempt of court hearing will take place on Aug. 3.