Tribal Lands, Too, Can Be Sacrifice Zones
The harms addressed by environmental justice are often deeply rooted. For instance, “public lands” would not exist but for dispossession of the Native populations. While federal legislation addressing injustices would be a welcome step, for such law to uplift Indian country, it must be mindful of the legal and moral obligation to support tribal sovereignty and self-determination, and it must provide the resources necessary for cultural survival and economic development.
As do individuals in “sacrifice zones” near facilities, Native communities too can experience the damaging effects of contaminants on their tribal lands — soil, water, and air pollution causing significant health problems. In addition, Native women living near natural resource extraction sites are often targets of violent exploitation and sexualization. Further, when culture and identity are rooted in the environment, the impacts of environmental harm are distinct and vivid.
Native peoples can mitigate vulnerability to climate change through enhanced food security, adaptation, traditional knowledge, and tribal control of resources. Environmental justice legislation can fit in here, strengthening protections for vulnerable populations by allowing communities to hold corporations and governments accountable and by providing strategies to mitigate and prevent future occurrences.
New law should grant private citizens and organizations a right to seek legal redress when a federal program, policy, or practice has discriminatory effects, and it should engage communities in government decisionmaking processes. To be of benefit to Native Americans, it must go on to recognize distinctions created by federal Indian law and policy, including sovereignty, the federal trust responsibility, reserved rights, federal power over Indian country, limited state powers, and the interpretation of treaties and statutes.
Such issues were addressed in litigation surrounding the proposed siting of the world’s third-largest industrial hog farm on Rosebud Sioux land. The project garnered opposition from members of the tribe and surrounding community, who viewed the siting as an environmental injustice. But the tribal council supported its construction.
Because the project required leasing tribal land, the Department of the Interior’s Bureau of Indian Affairs became involved. Concerned citizens filed suit to enjoin the farm’s construction, challenging BIA’s approval of the lease. When their claim prevailed, the council pursued a claim against the BIA assistant secretary in Rosebud Sioux Tribe v. United States, questioning his authority to void the lease. A subsequently elected tribal council opposed the hog farm. The tribe petitioned and was granted permission to switch sides and join the federal appellants and intervenors to uphold the assistant secretary’s decision voiding the lease. This realignment was based on community awareness of the environmental ramifications and the new council policy and tribal referendum in opposition to the farm.
Arguably, the case ended well for the Rosebud Sioux. The BIA’s application of the fiduciary trust obligation to protect the tribe and tribal trust land from environmental harm resulted in a positive environmental outcome. However, the tribe’s sovereignty was undermined by the assistant secretary’s action to unilaterally void a lease against the tribe’s wishes, further promoting the government’s paternalism over tribes and undermining tribal autonomy. These impacts on the autonomy of the Rosebud Sioux reinforce the notion that respect for tribal sovereignty, and inclusion early in the process at the highest levels of decision-making, must be cornerstones of any environmental justice statute.
Legislation must codify meaningful consultation, and agencies must defer to tribal views when making decisions affecting tribal interests. Meaningfully and immediately prioritizing the issues surrounding decisionmaking is critical to advancing tribal self-determination and prosperity. Properly constructed, environmental justice legislation will allow the United States to finally meet its trust and treaty obligations, rather than to offer aspirational language without the backing of institutional force.
A Toxic Legacy
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It has been decades since four workers engulfed in flames fled the Greenwood Chemical Plant after highly volatile vapors exploded and caused a flash fire that closed the plant, revealing a toxic waste dump that landed the site on the federal government’s Superfund list. But officials overseeing the cleanup of the worst chemical disaster in Albemarle County, Virginia, say most of the 33-acre property is cleared of contaminants and ready for use. Overcoming the stigma associated with a Superfund site is quite another challenge.
The tiny Greenwood Chemical Company, sitting on a steeply sloped, wooded parcel at the foot of Afton Mountain, employed no more than a dozen workers and made chemicals used in industrial, agricultural, pharmaceutical, and photographic processes. Less than a mile from Pollak Vineyard on Newtown Road, it’s only a few hundred yards from a scenic overlook on Interstate 64 with breath-taking views of the Blue Ridge Mountains and Rockfish Gap Valley.
“I would love to see it put to use,” said Michelle Payne of the Virginia Department of Environmental Quality, which took charge of the Greenwood cleanup from U.S. EPA in 2012. “The county isn’t receiving any tax money from anyone for the property. It’s just kind of sitting there.”
Eric Newman, EPA’s remedial project manager for Greenwood for the past 15 years, headed up a five-year review of the site. The 30-page report, with input from the Virginia Department of Health and DEQ, was issued in 2018. He agrees with Payne about the potential use of the property.
“Over the last five years, the most important finding is that the site remains protected,” Newman said. “We have success that the property is safe for all of the uses — as far as agricultural, recreational, and industrial — that was part of the risk assessment.” The property is usable again, but with limitations. Those would include not using the water on site for cooking or drinking; no residential use of the property; not interfering with a pump and groundwater treatment system; and making sure any habitable buildings constructed within 100 feet of contaminated groundwater have a foundation vapor barrier.
The plant was founded in 1947 by DuPont chemist F.O. “Neil” Cockerille, who once blew off part of his leg while working on an explosive used to detonate car air bags. He sold the plant in 1967 and it became known as Greenwood Chemical.
The plant had a history of problems long before the fatal 1985 explosion that shut it down. Volunteer firefighters from nearby Crozet regularly responded to explosions and fires at Greenwood Chemical, and there were other fatalities at the plant. It was to blame for contaminating the water of a tributary of Stockton Creek in the 1970s, leading to several fish kills and dead cattle at an adjacent farm.
“We had been up there multiple times in years past for explosions,” said Preston Gentry, former chief of the Crozet Volunteer Fire Department. “Anytime you went up to that place you always feared for your safety. You never knew what you were going to expect up there.”
Janet Sims used to live next door to the chemical plant on Summerest Lane in the historically Black neighborhood of Newtown. One winter, she and her young son hiked onto plant property in search of a Christmas tree. They got more than they bargained for. “We go to the back of the plant and we could smell a bad odor before we even got there,” she said. “We put our shirts over top our faces and when we got back there, we could see this still water, bluish green, with big mice and dead animals in it.”
But it wasn’t on the federal radar until 1985, when a spark ignited a vat of toluene vapors, a highly flammable industrial cleaning solvent. Fire officials said the blast was caused by electrical equipment that lacked state-required safety devices.
Sims remembers “walking to the bus stop to get my son off the bus and I had gotten halfway to the stop when I heard this explosion. I could see smoke at the chemical plant . . . and the men were running out of the chemical plant and screaming and hollering. When they got up the road about halfway, I see some of the men’s clothes looked like it had melted or something. I went to my sister’s house to call someone.”
Sims said a woman who worked for the rescue squad happened to be visiting her sister and she instructed them on what to do. “She said bring whatever water we can,” Sims recounted. “The men were almost at the top of the road and she told us to set them down and wrap them in sheets, and cut off anything that was stuck on them. . . . Those poor men, the clothes had melted into their skin. It was so bad.”
The four plant workers were identified as Charles Ward Jr., 31, of Staunton; John Harper, 34, of Afton; Maurrie Clark, also of Afton, 31; and Keith Woods, age unknown, of Waynesboro. All but one of the workers died within hours of the blast. Ward, who was burned over 80 percent of his body, lingered for 11 days at Norfolk Medical Center Hospitals, where he was transported from the University Hospital in Charlottesville. They left behind four wives and nine children.
The accident shed light on a host of environmental catastrophes at the site. For decades it had been the burial ground of nearly 600 leaking chemical drums and cylinders. Seven unlined lagoons were filled with toxic waste, including cancer-causing trichloroethylene. The drums contained benzene, cyanide, arsenic, phosphene, and hydrogen chloride, among others, all known to cause a variety of ailments such as cancer, liver and kidney damage, birth defects, and spontaneous abortion.
In 1987, EPA placed Greenwood Chemical on the Superfund National Priorities List, where it remains to this day. It is one of 1,185 Superfund sites across the nation and 31 in Virginia. EPA excavated 15,000 tons of soil and sludge, incinerating some on site and hauling the rest away to facilities as far away as Arkansas. The former lagoons and excavated areas were backfilled with two feet of clean soil. But they couldn’t dig deep enough.
Although most of the land has been cleaned, the DEQ’s Payne and Newman of the EPA concur that a two-acre area where the lagoons were and the manufacturing activities occurred still remains a problem. The chemicals seeped so far down into the deep soil and bedrock that they contaminated the groundwater in that section.
It was too far below the surface for excavation, so EPA built a water treatment plant in 2002 to deal with any remaining contamination in the ground. The agency drilled 11 containment wells, some as deep as 150 feet. “They are pumping daily to contain and eliminate any contaminants that may exist,” said Ignatius Mutoti, who’s in charge of day-to-day operations. “We bring it into this building. This is where the technology and equipment are for dealing with the contaminants that exist.”
His company, Retaw Engineering of Richmond, has a contract with the state to run the treatment plant. “We are the boots on the ground,” he said.
Mutoti, who is trained as a chemist with a doctorate in environmental engineering, makes the trip to Greenwood from Richmond every day. He is one of two employees who make sure the pumps are continuously drawing water from the containment wells 24 hours a day, seven days a week, all year long. If there ever is an issue, such as a power outage, Mutoti is alerted immediately via computer and cell phone.
The water is pH-balanced, chemically treated, and run through tanks containing granular activated carbon, “the workhorse of the operation,” he said on a recent tour of the plant. It’s then released back into the environment. They are confident the system, which is designed to treat up to 50 gallons per minute, is doing its job, keeping the contaminated groundwater from escaping the property and seeping into the wells of nearby residents.
“The goal is to have this water meet drinking water standards,” Mutoti said. “We test that the water is as good as the water coming from a faucet in your house. Maybe even better.”
Albemarle County assessed the land and the treatment plant at a high of $70,500 in 2012. But that was reduced to $100 in 2015 by the incoming tax assessor. “There’s no market value to this property,” said Peter J. Lynch, Albemarle County tax assessor. “It’s a Superfund site. I can’t attest to who the legal owner is. All we know is that it’s in our records as Greenwood Chemical Company. No one has taken any responsibility for it.”
The tax bill is currently 84 cents per year, down from $537.22 in 2012. But no matter what the amount, no one has been paying taxes since 1999. The property is $11,105.90 in arrears. Although the owner is still listed as Greenwood Chemical, the company was dissolved in June 2008, and the last living board member, Albert Cereghino Jr., died a few months later. His son and executor of his estate, Albert Cereghino III, has disavowed any connection to the chemical company or the land.
“Technically it’s owned by the company that’s been dissolved,” said Rocio Lamb, chief of Revenue Administration for Albemarle County. “We can only sell the property for tax purposes, but we can’t take ownership of the property because they haven’t paid taxes. It doesn’t work like that.”
Also complicating the matter is a $42 million lien EPA put on the property in 1997, the estimated cost of the cleanup between 1985 and 1997. In the 20 years since then, Newman said, the cost has risen to $52 million. He said EPA has collected a total of $6.5 million, which includes nearly $4 million in settlements from “various responsible parties.” The rest of it is the state’s cost share. The state has been paying $500,000 each year to maintain and operate the plant since taking it over from the EPA in 2012. “We don’t use these liens as bludgeons to prevent possible reuse,” Newman said. “If the property is worth say $500,000 and someone is willing to use this property in an economically viable way within the land use restrictions, we wouldn’t stand in the way.
“If someone took action to put a housing development on that property, we would object. But if they came in with a proposal to put in solar panels, that would be perfectly legitimate. The EPA will look at the broad picture and determine what is in the best interest to the citizens and that is how we will act.”
The federal agency sought to recoup some of the cost for the cleanup from those responsible for the problems. The government filed a civil suit in U.S. District Court against four defendants: Greenwood Chemical Co., its president Cereghino, High Point Chemical Corporation, which supplied Greenwood with equipment and capital in exchange for developing chemicals, and High Point’s president, Clarence Hustrulid, who also ran Greenwood Chemical before Cereghino.
According to the Federal Register, the parties reached settlements in 1999 and 2000. High Point agreed to pay $4 million to settle claims against it; Hustrulid and Cereghino each had to pay $100,000, and Greenwood Chemical Co. was liable for $1,000.
Separately, the widows of the four workers killed filed lawsuits against the company as well as the Virginia Department of Labor and Industry, which enforces federal worker safety standards. In 1988, they were awarded a combined $110,000, out of which they still had to pay legal fees. The $100,000 amount was the maximum allowable under the company’s insurance policy. Greenwood added $10,000 itself to the settlement, according to a report in the Charlottesville Daily Progress at the time. The women were thwarted in their attempt for a larger judgment by existing state law on workers compensation, which restricts the rights of workers and their families to sue their employer.
The Virginia Department of Health has been monitoring the well water of nearby residents since the 1985 explosion. Mount Zion Baptist Church on the west side of the property, and Newtown Community Center across the street, also were analyzed. Currently, the state only tests the well water of those nearby residents who ask for it each year.
The results of annual samples of 11 such wells were analyzed by the Health Department’s Division of Environmental Epidemiology as part of the five-year review.
“Our take home message is that we didn’t find anything that would affect anyone at this time,” said Dwight Flammia, the DEE’s public health toxicologist. He co-authored the report with Amy Hayes, health assessor, determining how the levels of contaminants detected in the residents’ well water compared to acceptable standards.
“The current value for all of the drinking water tested are well below the groundwater performances standard,” Hayes said. Flammia added, “It’s more protective than what you would get while drinking regular tap water, which has very protected health values.”
According to the report, only one well, identified as RW3 (residential well #3), “had detectable concentrations of six contaminants in 2013, including one, bis(chloroethyl) ether, that exceeded” groundwater standards. The Health Department said that was the only instance in the past five years of testing and should not be a cause for concern. “Once you consider how much water a person drinks and how long they are in the area,” it’s a very small risk, Flammia said.
But that isn’t much consolation to those who grew up around the plant. Some blame their health issues over the years on living next to such a toxic neighbor. Sims believes it wasn’t just the drinking water that was suspect. She has been suffering respiratory problems for years. “I still am dealing with health issues off and on,” she said.
In 1992 Sims was diagnosed with sarcoidosis, “a chronic disorder of unknown origins.” It affected her lungs and resulted in a lung transplant in March 2003. She moved from her family’s Newtown home to Ivy, to be closer to the hospital for treatment. “Then in August 2003, I started spitting up blood a lot and they found that my other lung was damaged really bad and they had to remove that as well,” she said.
Five of Sims’ six siblings grew up down the street from the chemical plant. “It was like we all that lived in that house, we all had some kind of problem,” she said. A brother, Elgie Sims Jr., died in 2013 at the age of 60. “He had bone cancer. He had to have a bone marrow transplant. But it didn’t work for him at all. I think a whole lot of it had to do with that chemical plant. So many people in that community was passing away well before me with breathing problems and cancer,” she said.
Despite EPA’s assurances that their drinking water was safe during the years of cleanup, Sims and her extended family never wanted to take any chances. They used bottled water for years, from the time of the explosion until the day they sold the family home in 2005. Sims died in 2019 at the age of 72.
Federal and state agencies expect to be working on the Greenwood Chemical plant cleanup for quite some time. “I think it will always be a Superfund site,” Newman said. “The way [the remedial plan] is set up, as of today with no changes made, it would be in perpetuity,” Payne said.
But regulators emphasize that the property is ready for re-use and encourage anyone interested in using it to contact them. No additional cleanup work needs to be done with the land, according to Payne. She said given the slope of the land, it probably wouldn’t be conducive to a soccer park, but certainly hiking or biking. She said there’s plenty of bamboo that could be harvested and repurposed. “There is nothing dangerous on the site for humans to be on there. The groundwater is the problem. The surface is fine.”
Mutoti, who works at the property every day, envisions a golf course. “Or we could just leave some space for the animals,” he said. “We are making progress. “This is goal driven. And we are meeting certain goals. But making sure everyone is comfortable is another thing. We have to remove the stigma related to contamination.”
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This article was originally published in September 2018 in the Crozet Gazette, a community newspaper in rural central Virginia. According to officials from EPA Region 3 and the Virginia Department of Environmental Quality, ongoing remediation as described in the article continues to successfully capture groundwater pollution to date. Although there was an attempt in 2018 to repurpose the site, according to DEQ the acreage remains unused.
Newtown, the historically Black neighborhood adjacent to the Greenwood Chemical site, is an example of the impact facilities and their waste legacies can have on communities of color and low-income communities. —Ed.
TESTIMONY Most of a 33-acre property in a historically Black neighborhood in rural Virginia is cleared of contaminants caused by a defunct chemical company and is ready for use. Overcoming the stigma associated with a Superfund site is quite another challenge.
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The federal government defines brownfields as "abandoned, idled or underused industrial and commercial properties where expansion or redevelopment is complicated by real or perceived environmental contamination." Brownfields may make you think of dirty, blighted, abandoned industrial property, but that image is too narrow. Though some brownfields are old industrial sites, others are commercial buildings with little or no environmental contamination. Brownfields could be former service stations, warehouses, abandoned railroads or air strips.