Cover Story: Equal Environmental Rights

Ending the link between poverty, race and pollution

Sean Hughes

Equal Environmental Rights

Pollution is everywhere — exhaust spewing from cars, oil and gas spills from barges and boats on the Ohio River, raw sewage dumped into the Mill Creek, chemical fertilizers and pesticides leaching into ground water. Every human being is exposed to environmental toxins in some way.

But not all pollution is created equal, nor is exposure to it. Some pollutants, such as air vented from an industrial complex in which toxic waste is burned, can carry into a community compounds that cause serious health problems.

Neighborhoods lined with trees and yard after yard of green lawns usually don't have that kind of industry located within 300 feet of residential housing. But for those who live in low-income neighborhoods and communities where the population is mostly minority, exposure to that kind of pollution is just part of walking to school or to the corner store.

Polluting industry all across this country is often located in those neighborhoods, and Cincinnati is no exception. Many don't think it's fair that the poor and minorities ought to bear a disproportionate burden of pollution. Not only are they tired of it, they're sick, too, and the source of much of their illness comes from their business neighbors.

Numerous pollutants have been connected to specific health problems, as the Hamilton County Department of Environmental Services explains (

The problem is proving which chemicals from which plant cause which health complications, according to Mike Henson, a community activist working in Lower Price Hill.

"Bad company, single source, provable link between that source and these illnesses — it's obviously terrible, and you see all the complications for these folks to prove it, enough to make a Hollywood movie out of it," he says. "But in Lower Price Hill, is it Queen City Barrel? Is it the Metropolitan Sewer Division? Is it this land? Is it that plant? Is it the lead poisoning?"

The environmental justice movement is focused on bringing about the equal application of environmental rules and enforcement and creating an opportunity for communities with high levels of pollution to have those issues taken into account when a company wants to move in or expand an existing facility or operation.

"Environmental justice is really civil rights applied at the cellular level: equal access to health, equal access to air, equal access to water," Henson says. "It's a whole life concept that says that when we talk about equal rights in this society, we're talking about everything. We're talking about what somebody experiences just walking down the street.

"One of the functions of government is to protect its citizens. We look at protections from 'crime.' Some guy might mug me if I go downtown to see a concert. But when a company mugs me, somehow that's different. When I got mugged on the street, I got over it pretty quick. But some of these people have gotten mugged by some of these companies in Lower Price Hill, they're not getting over it very quick. You're talking cancer, heart disease, neurological problems, lead poisoning. You're not talking about a few bruises you get over. You're not talking about half a paycheck you lose. You're talking about life."

Slamming the door
Lower Price Hill, Spring Grove Village and other low-income, predominantly minority neighborhoods, count many businesses as their neighbors. The explanation given by many activists is that poor people and minorities don't have the money or power to fight back, and regulatory officials turn a blind eye, so polluting businesses concentrate in these areas. This means a few communities have a disproportionate amount of toxins in their neighborhoods when others don't have a single polluting business.

This isn't unique to Cincinnati. Marti Sinclair of Forest Park, environmental justice chair of the Ohio Chapter of Sierra Club and executive director of Environmental Community Organization (, started her career over 13 years ago fighting the burning of hazardous waste in Oklahoma.

"In the companies I was fighting, the kilns burning hazardous waste were in communities that were 50 percent black," she says. "Places where they were burning fossil fuels had 5 percent black. You can say it was an accident, but I say it was a deliberate strategy."

"We stopped them in Oklahoma. They would just move to a more vulnerable community, and that's no kind of victory. Although we've been working on this for years, it hasn't reversed the pattern. They're still in those southern black communities who haven't been able to shake them off. We have raised the emissions standards, but the pattern hasn't stopped."

The pattern is simple — polluting companies versus the low-income and/or racial-minority community in which they operate. When a company violates an environmental law by dumping chemicals into a stream or venting pollutants into the air, they might not get caught because they know how to get around the law or inspection requirements.

They might even be doing something nobody knows is hazardous because the effects of a particular chemical haven't been studied. But the neighbors know something is wrong because of the stench wafting through the area, the sudden irritation in their lungs or burning in their eyes.

That's where regulatory agencies are supposed to step in.

"I think a lot of people are surprised when they have a toxic waste problem of some manner, and they think the health department will come and help them and all of the agencies will do the right thing," says Lois Gibbs, founder of the Center for Health, Environment and Justice (CHEJ) and a former resident of Love Canal, New York. "Almost every one of them slammed the door in our face at Love Canal, and I find them slamming the door in the faces of the communities today that we work with across the country."

CHEJ ( was instrumental in establishing some of the first national policies critical to protecting community health, such as the Superfund Program and right-to-know legislation. Gibbs was recently in Cincinnati to help Ohio activists crafting a state environmental justice policy.

Rats and garbage juice
Ohioans for Health, Environment and Justice (www.ohioenvironmental is working with local environmental justice groups to get input on crafting a statewide policy that would require all municipalities to recognize and address environmental justice issues. They began with Executive Order 12898, issued by President Clinton in 1994. The order set the criteria to be used in identifying an area in need of environmental justice assistance. It also directs the EPA to set policy and offers states assistance but there are no consequences for failure to implement any aspect of the order.

A recent report from the office of the inspector general for the U.S. Environmental Protection Agency sharply criticized the EPA's failure to conduct environmental justice reviews of its programs and policies. Congressional representatives are now working to convert the order into a law.

"What is protecting us? The laws they have out there now protects the industry, it doesn't protect us," says Marilyn Evans, the executive director of Communities United for Change (CUFA) and the unofficial "environmental justice guru" in Cincinnati. "We believe the government protects us like we believe the board of health protects the health and safety of the people until they're pressured not to. How is that?"

The most recent pressure has come in the form of a requirement for the Cincinnati Board of Health to approve an operating permit for a waste transfer station in Spring Grove Village on the site of the closed Environmental Land Development Association (ELDA) landfill on Este Avenue. The landfill was the target of neighborhood campaign for closure that lasted 10 years; residents claimed the landfill was a source of toxins, and the Ohio EPA agreed, ordering the closure in 1997.

"The transfer station is in a community where the environment is already impacted by other sources of toxins and hazardous waste," Evans says. "We worked to close the landfill for the same issue. There should be no other types of industry that comes in and helps pollute the community already more than what it is."

A transfer station means the garbage is just passing through on its way to some other place, so what's the big deal? Evans screws up her face at that dismissive perspective and points out that hundreds of trucks running on diesel fuel will be driving through the community — spewing fumes, dropping trash, leaking fluid on the roadways.

"You have all this garbage from the garbage trucks that are uncovered a lot of the times, with the juice running when you put it on the transfer floors," she says. "You have rodents, rats, big birds carrying this stuff all over the place. There's a lot happening at the transfer station that will affect the neighborhood and the surrounding neighborhood's health."

Evans grins when she explains the Cincinnati Board of Health refused to grant the transfer station a permit five times over the course of five years.

"We worked very hard to get the board of health to look at the effect and the health of the people," she says. "At this point, the board of health was persuaded that, if they didn't pass this operating permit, they could be sued, they could go to jail and they could lose their powers ... over this type of issue. Being volunteers, they went ahead and passed it this time. They had no choice."

The Environmental Review Appeals Commission granted the permit, according to Heidi Greismer, spokeswoman for the Ohio EPA. The commission handles appeals of decisions made by the Ohio EPA.

Once that appeal was granted, the board of health "didn't have a choice," Greismer says.

The Ohio EPA can't offer any assistance to the health board on issues of environmental justice.

"The Ohio EPA has no environmental justice policies in place, doesn't conduct environmental justice reviews and hasn't been trained in anything related to either," Greismer says.

Gibbs says states frequently override local decisions. She says this frequently happens when new facilities are trying to get permits.

"It's really unfortunate because the community should be able to define for themselves what is going to be in their community and what are they going to tolerate and what are they not, in reference to clean business as well as business that create environmental hazards," Gibbs says. "We're working with some groups in North Carolina (where) they wanted to build what they called a 'mega-dump.' These are big regional dumps. The local community and town — it's very rural there — said, 'No, you can't do it in our jurisdiction.' It was the same sort of thing for (Spring Grove Village). The state's like, 'Too bad, we need capacity and we're going to put it there, like it or not. And if you deny this we're going to take legal action and blah, blah, blah.'

"It's like, 'Why? Who gave states the right to say on behalf of the larger populace that the folks in this community must suffer?' "

State governments complain about federal mandates but they are equally guilty of making demands. That is why local laws are needed, Gibbs says.

"That's where the environment justice piece comes in because ... those threats are against people in communities that are low income or communities that are of color."

Profitable and green
Without the protection of law, cities are likely to capitulate to pressure. Left unprotected are the most vulnerable communities that are in jeopardy, which tend to be like the hole of a donut — surrounded by polluting industry. These neighborhoods are frequently referred to as "toxic donuts."

"It's the reason we're going around in Ohio and other places talking about putting together some policy that gives voice to the people inside that donut hole," Gibbs says. "It doesn't level the playing field, but it does give them more power, more positions on the field so that maybe they can get some change in the community in a much shorter period of time because they would have a voice at the table and access to resources."

Loss of jobs, tax base and predictions of economic calamity frequently rise up in response to counter the evidence presented by those who say environmental justice is essential. Sinclair is baffled by that position.

"That's a frequent claim by people opposing environmental advances," she says. "When studies have been done, they show the reverse. When you look at the cost/benefit analysis, it always comes out in favor of less poison in the environment. What goes around comes around: loss of employees due to sick time, loss of educational time for kids who are too sick to go to school. It shouldn't be that difficult to understand. Someone has to pay for those health care costs."

The Cincinnati USA Regional Chamber was invited to the first discussion held about crafting an environmental justice ordinance for the city, but they refused to participate or support the effort, according to Sinclair.

"The attitude has been very discouraging," she says. "It reminds me of the old comedy routine when someone sticks their fingers in their ears and says, 'Lalalalalalalalalalala' to avoid hearing what's being said. It benefits our business community to have Cincinnati moving forward, being progressive, having a cleaner environment. There are many citizens who are enthusiastic about dedicating themselves to development in their communities. The degradation of the general environment — nobody wants to move to a city that looks dirty and smells bad."

With green business practices becoming more popular and municipalities such as the city of Cincinnati giving tax breaks to companies that build to Leadership in Energy and Environmental Design standards, it seems a good business move to be environmentally friendly.

Cincinnati Health Commissioner Noble A.W. Maseru says social justice is a component of public health, and in his 28 years he's seen environmental responsibility actually create jobs.

"There's several cases of collaboration that shows there is a contribution or at least a constructive social benefit to partnering, meaning the private sector," he says. "There is an added value with the environmental justice approach. Examples? In the Bronx, there's a person there that has created a greening in the Bronx. That's created industry, that's created jobs."

Henson gives an example closer to home, Queen City Barrel in Lower Price Hill.

"Go to their Web site," he says. "They brag about their pollution controls. They claim that their pollution controls are among the best in the industry. Why did they put them in? Community pressure forced them to. Queen City Barrel remained profitable for many years after these environmental controls were forced on them. This economic blackmail of jobs versus environment is a false dichotomy. I don't buy it."

Hyde Park doesn't stink
The original city ordinance that forced those controls was called Title X. It was repealed when then-Mayor Charlie Luken dismantled the city's Office of Environmental Management, according to Henson.

With no money and no staff, the law was unenforceable. That didn't sit well with many community members, and a push to reinstate the law resulted in the law now referred to as the Cincinnati Clean Air Act.

It states: "No person shall cause the emission or escape into the open-air from any stationary source or stationary sources whatsoever, any air contaminant, in such manner or in such amounts as to: (1) endanger the health, safety or welfare of the public, cause unreasonable injury or damage to property; or (2) substantially interfere with the comfortable enjoyment of life, health, property or safety."

Anyone can call 513-946-7777 to report a problem. An inspector from the Hamilton County Department of Environmental Services will investigate. That's the agency contracted by the city to look into complaints; if violations are found, the city's law department gets involved.

"Say you smell an odor," Henson says. "You don't need to prove where it comes from. The investigator just wants to meet you, smell the odor, know that you have the problem. Then it's their job to go find it."

The majority of neighborhoods in the city might question the need for anything beyond the Clean Air Act simply because they don't have toxic waste in their backyard or the threat of it moving in anytime soon.

"They don't put it in high income areas," Harris says.

She laughs at the idea that a new landfill replacing the soon-to-close Gray Road landfill could ever be located in or near Hyde Park or Indian Hill.

"We'd have 100,000 lawyers," she says.

Evans goes on to compare the city's response to the rail car styrene leak in the East End in 2005 to the fire that destroyed an empty Queen City Barrel warehouse in 2001. The emergency services mobilized in 2005 were dramatic and well-publicized: evacuations in the East End and surrounding neighborhood, emergency shelters opening, Mayor Luken personally overseeing the clean-up effort and penalties levied against the business responsible. Evans said nothing like that happened when Queen City Barrel blew up and burned for two weeks in August 2001.

"Do you know how much came all over the city?" she says. "You didn't hear no outcry because it happened over there."

Henson says one of his most memorable experiences in the largely Appalachian, white neighborhood of Lower Price Hill also underscores the difference money makes.

"I was driving down State Avenue on a Saturday afternoon," he says. "There's a little tiny church and there's a wedding going on. Here's the bride and groom out in front of this church and they're all dressed up. They're working class people, and this is their big day. And the smell is unbearable. Tell me that's right. This would never, ever happen in Hyde Park. It would never be tolerated."

'Start the fight'
Addressing air pollution problems through the Clean Air Act is a good start, but pollutants enter the environment in a host of other ways. Poor and non-white people have little to no ability to fight that polluting.

An environmental justice ordinance wouldn't give those in highly polluted neighborhoods more rights than other people or companies. It's just a chance to be heard, according to Gibbs.

"It's about giving everybody a place at the table to have a conversation," she says. "We know that some people — mostly white people who have money — always have access to that table. Environmental justice is just about getting people who do not have money or may not have privilege to get through the door and to the table so that they can have a voice in decisions that affect their lives directly."

The proposed environmental justice ordinance being crafted for Cincinnati would allow low-income neighborhoods to challenge the approval of permits for new or expanding industry in their community (see "Pollution for the Poor," issue of Feb. 20). New language is being drafted by the law department to include an additional review based on race as a means to collect data to identify whether or not race plays a part in these decisions.

Whether or not to use race in addition to income as the criteria for triggering an environmental justice complaint and investigation is the sticking point. Some say merely collecting data isn't enough.

"Everyone is behind a policy to advance racial, ethnic equity in Cincinnati and to protect poor people who might otherwise be unable to protect themselves from damaging development," Sinclair says. "It's been deemed illegal by the Supreme Court to base the standard on race. We can move towards our policy goals of racial, ethnic and poverty-status equity by crafting a statute that uses poverty as the evaluating criteria.

"Then we follow it up with an analysis to see that there is no resulting damage to communities of color. If it ends up hurting any community of color in Cincinnati, then it puts that community in the position of challenging that statute. It would be hard evidence in our hands as a community to challenge the Supreme Court. It puts Cincinnati itself in the position to say there's a problem with this federal position. The policy outcome that we're looking for is racial, ethnic and poverty equity in Cincinnati. The statute is a tool. It's not a perfect tool, but it'll get the job done."

With a scowl on her face, Evans disagrees with that assessment.

"From where CUFA stands, we feel like the existing issues need to be addressed before you address the future issue. This Environmental Justice Ordinance does not address the existing issue," she says. "Any ordinance that you put up will be challenged. It could be the most perfectly crafted ordinance, and to say that it won't be challenged is impossible because you're going to have 1,000 lawyers from the other side to challenge it.

"Make it happen, and then argue about it, then fight. You got to put something up there. You know there's gonna be a fight, just start the fight. Don't keep sitting at the table nitpicking."

Councilman David Crowley, who is driving the Environmental Justice ordinance, says that about 90 percent of the communities of color in Cincinnati would be covered by the income-based criteria. Because there are neighborhoods of color not protected, Gibbs takes issue with the argument that the ordinance would result in environmental justice.

She accuses Cincinnati of acting like President George W. Bush. He removed race from the executive order, perpetuating discrimination.

"This isn't something like, 'If you're African-American or you're poor white folk, 2 percent of you are going into college.' It's not that kind of law," Gibbs argues. "I think that's where the confusion comes in."

Gibbs goes on to explain a specific situation in Ohio.

"Look at the Georgia Pacific site, right outside Columbus, Ohio. That is 97 percent African-American but they're not poor, they're not low-income," she says. "They were there first, and then Georgia Pacific was sited in their neighborhood, and it has created huge public health problems and environmental problems. The reason it was sited there, we believe, is because of their race. It's harder for them to fight back. African Americans and communities of color really do have less power, even if they have equal money to another working-class white community. That's a really race-based issue. Race has to be a key part of it because there are many communities across the country."

Sickening the kids
One advocate for getting the law enacted in Cincinnati, Health Commissioner Maseru, supports the income-based criteria as a first step because he believes the obstacles can be overcome. The city is going in the right direction to support that, he says.

"It will place more responsibility on the city to have an environmental justice review of businesses or entities which wish to operate. That's not a bad thing," Maseru says. "The newly created Environmental Management Office has the responsibility and more policy teeth than our office has."

The collection and analysis of data is what Maseru says his department can offer in support of the need for laws and enforcement. He believes lawmakers are "flying in the dark without instrumentation." Using the proposed waste transfer station in Spring Grove Village as an example, he says residents and elected officials needs hard data to fight the arguments against environmental dangers to public health.

"I haven't seen the evidence, and that is one of the responsibilities of this department, to see what is the actual empirical evidence of the morbidity and mortality and the contaminants of that community," he says. "We have put together a memorandum of agreement with CUFA, and one of those responsibilities that we've stated that we're going to partner with them on is a community health assessment. We've already started with the air pollutants, determining what contaminants that community is subjected to."

Maseru had the health department prepare a list of the most frequently occurring health issues being treated in the city's health clinics. The Price Hill clinic is probably the one closest to Spring Grove Village, and he points to the first section for children up through age 4.

"It's upper respiratory infections, lead toxicity, asthma, bronchitis," Maseru says. "Some folks think it may be related to the house, but we're looking at this as a much more global matter. This is definitively a community problem, an area problem. You look at (ages) 5 to 9: (attention deficit hyperactivity disorder), strep throat, upper respiratory infection again. You can clearly see that these are really environmental, air-pollutant contaminant issues."

The health department is also looking at mortality rates by community. Hamilton County tracks that information but only reports countywide death rates.

The board of health has asked the county to break the data down by community, gender and age group and census tract. That, combined with the clinic information and the health study, will provide a complete view of the health of the community and pollutants.

"Is there any association? I know that there is," Maseru says.

Holding companies accountable
With the expectation that politicians, business and the community at large really want to do the right thing, Henson says it's possible to find ways to make environmental justice happen.

"Consolidated Metal has a dip plant in Lower Price Hill," he explains. "They make big monster U-bolts for trucks. The last things they (do) after they cut them and thread them, they dip them in something to keep them from rusting up. That stuff stinks, and they blow it right out on the street. Kids walk by on the way to school and they're inhaling it, the neighbors are inhaling it. It's not an illegal chemical but it's an unpleasant odor, and who knows what the consequences could be down the way, health-wise? We had the city come out and they talked to 'em. They said, 'We'd like to fix this. Can you give us until April? We've got some things we're gonna do, and we think we can fix it.'

"They solved the problems. They're good neighbors. There are some people in these companies who are interested in being good citizens; they're good business people but they want to be good citizens, too. There are some people in regulatory agencies who care. You come up against a lot of the other stuff, too: fear, indifference, profit-mindedness, inertia, disbelief."

Henson, Gibbs and many others agree that it's ludicrous for the victims to have to prove their case "beyond a reasonable doubt," showing irrefutable proof that a chemical from a particular plant causes a specific illness.

"So why should we wait 20 years to see if something is going to be cancerous, then enact laws against it?" Henson asks. "Why don't we do something preventative? Who gets to be the sick one to prove, 'Oh, yeah I guess it was making people sick, so let's get rid of it now.' It's all well and good if you're the one making money; it's not so good if you're the one getting sick."

As a community, we need to look at our businesses as our neighbors and expect them to be respectful of their neighbors, Henson says. For this to be a healthy place to live, we all need to keep our yards clean, be cognizant of what happens to our garbage and make good choices.

"You start closing these gaps when companies have to start building in anti-pollution controls in from the get," Henson says. "If people are going to say, 'No, we don't want your company because we don't want these environmental health problems being brought in here,' then the companies are going to have to change how they do business.

"If you design a business plan, you're going to include certain things — you're going to include secretarial help, computers, garbage pickup. So include the environmental controls. Make it part of how we do business in this country, and then there's no loopholes, there's no safe place to go with these things."

Until a universal respect for the environment pervades the country, Henson would just like to see equal treatment among his neighbors.

"If I get a traffic ticket, nobody negotiates with me about the penalties," he says. "They give me a ticket. I either pay the ticket or there's consequences. There's no negotiations. My speeding could cause some damage, but so does theirs."

He goes back to the violation of Queen City Barrel accepting barrels with too much hazardous waste in them.

"They found barrels that had more than these amounts — illegal," Henson says. "Big headlines about, 'We caught 'em, we busted 'em.' What have you done? It's been three years, what have you done to penalize this company? 'We're in negotiations.' I think that what has to happen is that each company has to be held accountable." ©

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