Legal victory for journalists’ investigation into prison surrounded by toxic coal ash dump

December 16, 2014 – The Pennsylvania Office of Open Records has ordered the Pennsylvania Department of Corrections (DOC) to produce documents pertaining to prisoner health at the State Correctional Institution (SCI) Fayette to two journalists. The records were sought via Right-to-Know requests filed after the Abolitionist Law Center (ALC) and the Human Rights Coalition (HRC) issued a report detailing a year-long investigation into the health impacts of exposure to coal waste at SCI Fayette, which is surrounded by 40 million tons of waste, two coal slurry ponds, and millions of cubic yards of coal combustion waste. Report at this link: No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette.

Following the release of the ALC/HRC report, the DOC announced that Secretary John Wetzel had ordered the DOC to cooperate with the state Department of Health in investigating prisoner health at SCI Fayette.

On December 1, 2014, the Office of Open Records granted an appeal [Herald Standard v. PADOC] by Christine Haines and the Herald Standard newspaper, ordering the PADOC to produce “documentation of illnesses contracted by inmates and/or staff members at SCI-Fayette.” Although the PADOC cited 8 grounds for concealing the information, the OOR decision found that they failed to establish that any of them applied to the records sought. The DOC’s argument that the records were exempt from disclosure due to their being part of an ongoing, non-criminal investigation was rejected by the decision, which held that a “one-time inquiry” by an agency is not part of that agency’s official duties.

On December 8, 2014, the OOR granted in part and denied in part an appeal by Don Hopey and the Pittsburgh Post-Gazette [Pgh Post Gazette v. PADOC]. The DOC was ordered to produce records and communications pertaining to the coal waste and coal ash site, and it potential or actual impact on air, water, and land pollution, as well as its link to prisoner or staff health. The decision exempted the DOC from producing records pertaining to staff health and environmental assessments completed prior to the construction of SCI Fayette due to the DOC alleging that it was not in possession of any such records.

The DOC has 30 days to comply with each decision or to file appeals in the Pennsylvania Commonwealth Court as well.

Given the DOC’s representations to the OOR, it is questionable how thorough or probing these records will be when released. In the Post-Gazette decision, the reasons and scope of the DOC’s alleged investigation appear to be based on a misstatement of the findings of the ALC/HRC report:

[DOC Bureau of Health Care Director Christoper] Oppman states the Human Rights Coalition alleged that there is an increased incidence of cancer deaths among SCI-Fayette inmates, especially lung cancer, and that these deaths are based on the proximity of SCI-Fayette to the Canestrale Contracting Co. coal waste and coal ash landfill. Director Oppman further states that based on these allegations, the Department conducted an investigation to determine whether there was a higher incidence of inmate cancer deaths at SCI-Fayette than at other State Correctional Institutions. Director Oppman goes on to state that the results of this investigation were provided to the Pennsylvania Department of Health (“Department of Health”) for its own investigation.

Contrary to Director Oppman’s statement, however, the report detailed a range of health problems linked to exposure to toxic coal waste beyond cases of cancer, and made no finding that lung cancer deaths were “especially” increased:

Over the past year, more and more prisoners have reported declining health, revealing a pattern of symptomatic clusters consistent with exposure to toxic coal waste: respiratory, throat and sinus conditions; skin irritation and rashes; gastrointestinal tract problems; pre-cancerous growths and cancer; thyroid disorders; other symptoms such as eye irritation, blurred vision, headaches, dizziness, hair loss, weight loss, fatigue, and loss of mental focus and concentration. (No Escape, p. 1)

The report also carefully acknowledged the preliminary nature of its findings, emphasizing the need for further investigation:

Our investigation leads us to believe that the declining health of prisoners at SCI Fayette is indeed caused by the toxic environment surrounding the prison; however, the inherent limitations of the survey do not establish this belief at an empirical level. A substantial mobilization of resources for continued investigation will be required to confirm the relationship between prisoner health and pollution from coal refuse and ash. (No Escape, 2)

. . .

As previously mentioned, the inherent limitations of the survey make it impossible to empirically show that prisoners at SCI-Fayette are getting sick at an unusually high rate or that these illnesses are caused by pollution from the dump. (No Escape, 20)

In response to Oppman’s characterization of the report’s findings, ALC staff attorney, Dustin McDaniel, stated:

“This blatant mischaracterization of our findings calls into question the integrity and purpose of any inquiry by the DOC into prisoner health. Seeking to discredit a report by disproving a claim that was never made, and ignoring the actual claims appears designed to cover-up rather than uncover the extent and cause of the alarming patterns of health problems our investigation found.”

The Abolitionist Law Center and the Human Rights Coalition are continuing to investigate health problems at SCI Fayette. Since the September publication of No Escape, we have received substantial reports from prisoners and their family members that further corroborate the patterns identified in the report.