Frustration With Health Department Intensifies as Environmental Groups Seek to Overturn ABC Coke’s Air Permit Renewal

By Hank Black

Environmental groups say ABC Coke’s air permit renewal issued in April is flawed and are appealing to the U.S. Environmental Protection Agency to agree that it does not comply with requirements of the federal Clean Air Act.

The groups are asking the EPA to object to the five-year renewal of the permit issued to the coke plant by the Jefferson County Health Department under Title V of the act.

The EPA has until Aug. 13 to respond to the request by the Southern Environmental Law Center and Gasp, a Birmingham-based clear-air advocacy group.

The permit renewal was hotly contested by area residents and organizations at a health department public hearing last year, largely over health concerns in the neighborhoods near the Tarrant facility. However, the permit renewal request was granted following the public comment period and an opportunity for the EPA to review the draft permit. The final Title V air permit was placed on the website of the health department, which is responsible for monitoring the county’s air quality.

Gasp and the environmental law center, which has a Birmingham office, cite several grounds for their petition, including some that are intertwined with a proposed federal consent decree that includes a $775,000 settlement to be paid by Drummond Company, the coke facility’s owner.

One flaw in the permit renewal, the petition states, is that it “improperly omits” certain requirements concerning the escape of benzene, a cancer-causing chemical, at the coke company’s byproducts recovery plant.

Among other objections, the petitioners say the public did not have sufficient opportunity to comment on some of the issues involving benzene because some information became available only in February, when ABC Coke’s owner, Drummond Company, entered into the proposed consent decree concerning the company’s historic mishandling of benzene. The action was brought by the U.S. Department of Justice on behalf of the EPA and the county’s health department.

The consent decree has not been finalized by a federal district court, and it is possible that other parties could file to intervene in the matter, Sarah Stokes, a senior attorney for the Southern Environmental Law Center, said in an interview.

Residents Mistrust Health Department

Disclosures about benzene pollution that came to light in the consent decree have fractured an already tenuous relationship between the health department and residents and their advocates in the heavily industrial northern Birmingham area, according to Stokes.

Speakers at a news conference last week cited mistrust of the county health department, complaining that its officials have not done enough to protect residents of the area from the health effects of pollution. The Asthma & Allergy Foundation of America ranks Birmingham No. 8 in its latest annual Asthma Capitals report. The American Lung Association ranks the area No. 14 in year-around particle pollution in its latest State of the Air report.

Residents’ concerns also were conveyed to the department and to the EPA through verbal and written comments submitted during the permitting process. The written comments universally opposed granting the ABC Coke air permit, according to the petition submitted to the EPA administrator.

A statement issued Tuesday from the health department chief environmental official, Jonathan Stanton, said that his department is committed to transparency with the public and is continuing to promote the public’s health throughout the county. The department “continues to devote significant resources toward the fight for cleaner, safer air, which has been demonstrated by a drastic improvement in air quality,” Stanton said.

Yet, Stokes and Gasp attorney Haley Colson Lewis said they and people living near the industrial area are increasingly frustrated with what they call a lack of transparency in dealings with the health department. Stokes said the department wants their trust and insists it acts in a transparent manner, but “over the last eight years (since inspections revealed the benzene pollution), time and again they’re on the record saying ABC Coke is in full compliance (with air quality regulations) when they’ve known it’s not in compliance.”

Environmental Justice Issue Raised

The petition also asks the EPA administrator to note the potential environmental justice issues surrounding ABC Coke. It notes that the Tarrant and north Birmingham area “is home to a high density of low-income and minority populations and a high density of industrial activity.”

In addition, Gasp and the law center point to “abuses of government power” surrounding the issue, citing last year’s bribery cases that resulted in federal convictions of a local state legislator and officials of Drummond and its law firm, Balch & Bingham. The legislator pleaded guilty and is in prison. The other two were found guilty at trial and are out on appeal.

If the EPA does not respond to their petition by Aug. 12, the environmental nonprofit groups could file suit to force a reply. If the administrator does not grant the petition, an appeal in federal court could follow.

Earlier this year on behalf of Gasp and other clean-air organizations, the nonprofit environmental law organization Earthjustice sued the Environmental Protection Agency for improperly regulating coke ovens, which produce several carcinogens in addition to benzene. Birmingham was singled out as an example of such pollution.