Media Release: Prisoners File Lawsuit Against New Federal Facility on Toxic Strip Mine Site in Kentucky

For Immediate Release 11/27/18

Image of USP Letcher proximity to slurry and LCW old-growth biological research station managed by Eastern Kentucky University

Contacts:

Emily Posner, Attorney for Campaign to Fight Toxic Prisons, (207) 930-5232

Prisoners File Lawsuit Against New Federal Facility on Toxic Strip Mine Site in Kentucky

PICTURES AVAILABLE

Washington, DC — Lawyers with the Campaign to Fight Toxic Prisons and the Abolitionist Law Center (ALC) and have filed a federal environmental lawsuit against the Bureau of Prisons (BOP) representing prisoners from across the country who say they were not properly informed about $444 million dollar plans to construct a new federal prison on top of a former coal mine, next to an active mine and coal sludge pond, which could house them in the near future.

Twenty-one prisoners are listed as plaintiffs, along with the ALC. The complete court filing can be found here. Pictures from the lawsuit and the prison site here.

The lawsuit comes after more than three years of a controversial Environmental Impact Statement (EIS) process conducted by the BOP and the consulting firm, Cardno. Public comments submitted by attorney Emily Posner in 2017 on behalf of the ALC can be found here.

The lawsuit states that federal prisoners should have been considered as parties with legally-required access to EIS documents, as required by the National Environmental Policy Act (NEPA). The EIS process outlines a wide range of social and environmental impacts, including potential health risks and alternatives to construction, which prisoners are uniquely situated to provide insight on and particularly vulnerable to the results stemming from the final EIS approval which occurred earlier this year.

The prisoners are asking the courts to halt progress on the plan until they have received access to documents for review and comment.

Map of active coal sites near USP Letcher proposal

One prisoner listed on the lawsuit, Manuel Gauna, stated: “I believe that construction of this particular prison is neglecting the people in Letcher and the people in the prison system. We as prisoners should have had the opportunity to participate in this public comment period for this project. Correctional officers are overworked at my facility [FCI Mendota]. I wish that the BOP would spend the money that it wants to use to build a new prison to properly staff this prison.”

Another prisoner named in the suit, Mark Jordan, currently at USP Tucson, explained, “Just last week President Trump publicly announced his support for the FIRST STEP Act, a reform bill aimed at reducing the federal prison population. The Letcher County project flies directly in the face of this reform narrative.”

Jordan continues, “Despite serious environmental and health hazards, the Justice Department solicited public comment from everyone except those most directly impacted by the project, the prisoners themselves. Health and safety issues aside, this is but a needless pork barrel project ushered through by Kentucky Representative Hal Rogers at a time when public opinion and policy-makers are trying to reduce the population of the federal prison system, not build more prisons merely for the sake of building more prisons.”

Prisoners aren’t the only ones concerned about the facility. Letcher County resident Elvenia Blair, who lives close the proposed prison, is also opposed to the plan.

Blair, who has been contesting the prison for several years, states that “Eastern Kentucky has the highest cancer rate in the nation. Forcing prisoners, correctional officers and their families to live, work and visit this environment is discrimination.”

Blair is also a board member of Friends of the Lilley Cornett Woods and North Fork Watershed, one of multiple local organizations which have expressed concerns about the impact of prison construction.

She continues, “With coal mining on its way out, the natural history of our mountains and wildlife is what we have left to attract people to the area. That will be disturbed with barbed wire, shooting ranges, heavy traffic flow of transporting prisoners. We won’t see economic growth from this.”

Emily Posner, Attorney for the Campaign to Fight Toxic Prisons, also notes, “Federal legislation indicates a downward trend in prison population. My clients are in agreement with local residents who feel that there are much better ways to generate federal support in Appalachian communities than wasting hundreds of millions on an unnecessary prison.”

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Abolitionist Law Center is a public interest law firm organized for the purpose of abolishing class and race based mass incarceration in the United States. ALC has participated in every NEPA public comment period related to BOP’s proposed prison in Letcher County, KY.

Campaign to Fight Toxic Prisons conducts grassroots organizing, advocacy and direct action to challenge the prison system which puts prisoners at risk of dangerous environmental conditions, as well as impacting surrounding communities and ecosystems by their construction and operation.

ALC Protests Coal Ash Pollution at SCI Fayette

SCI Fayette and surrounding coal ash site
SCI Fayette and surrounding coal ash site

September 30, 2013

ABOLITIONIST LAW CENTER COMMENTS REGARDING AIR QUALITY STATE ONLY OPERATING PERMIT NUMBER 26-0057 FOR THE MATT CANESTRALE CONTRACTING, INC. LABELLE SITE, LUZERNE TOWNSHIP, FAYETTE COUNTY

I.           INTRODUCTION AND OVERVIEW

In the August 31, 2013 edition of the Pennsylvania Bulletin, the Department of Environmental Protection published a Notice of Intent to Issue Operating Permit 26-00057 for the Matt Canestrale Contracting, Inc. Labelle Site. This permit covers a barge unloading and transferring operation associated with a reclamation area in Luzerne Township, Fayette County. At this site, coal ash and FGD sludge are used as capping material on a coal refuse pile. In accordance with 25 Pa Code §§ 127.426 and 127.428, the Abolitionist Law Center (ALC) herein files a timely protest and request for public hearing within 30 days of the publication of the Notice of Intent to Issue the Operating Permit.

II.           THE ABOLITIONIST LAW CENTER IS DEDICATED TO THE PROTECTION OF PRISONERS’ HUMAN RIGHTS IN THE STATE OF PENNSYLVANIA. MORE THAN 2,000 PEOPLE ARE IMPRISONED AT STATE CORRECTIONAL INSTITUTION (SCI) FAYETTE, WHICH IS LOCATED ADJACENT TO THE LABELLE SITE. THESE PRISONERS FACE SERIOUS RISKS FROM THE LABELLE SITE, AND THEIR RIGHTS AND THEIR HEALTH HAVE NOT BEEN CONSIDERED IN THIS PROCESS.

The Abolitionist Law Center (ALC) is a Pennsylvania-based, not-for-profit corporation, certified by the Internal Revenue Service as a §501(c)(3) charity. ALC provides legal services to Pennsylvania prisoners and engages in educational and organizing work around injustice in the criminal legal and prison systems. We work closely with prisoners, their family members, and human rights defenders in advocating for the enforcement of international human rights standards in Pennsylvania prisons.

The State Correctional Institution (SCI) Fayette is located in LaBelle, Pennsylvania, and is within less than 500 feet from the LaBelle Site. As of August 31, 2013, SCI Fayette held 2,022 prisoners. State prisoners are by far the largest population group in the town of LaBelle, PA, and they are also the least considered. A sentence to prison does not – and should never – entail a person being subjected to carcinogenic living conditions.

The LaBelle Site is a 500 acre dump is located on top of the hill between the small community of LaBelle and SCI Fayette. SCI Fayette is practically surrounded by the dump, to the north, east, and south. Much of the prison facility lies just 500 feet from the dump boundary. The dump has been operated by Matt Canestrale Contracting LLC (MCC) since 1998, prior to the construction of SCIFayette in 2003. Previously the dump was the site of the largest coal preparation plant in the world operated by J&L Steel, which processed coal from nearby mines. Around 31.5 million tons of waste from processing coal were dumped at this site before it became a coal ash dump. The prep plant eventually closed in the mid-90s.

When MCC, the current operator, acquired the property it signed an agreement with the Department of Environmental Protection (DEP) to “reclaim” the site and was given permission to dump coal ash as part of it’s reclamation plan. DEP says that this is a “beneficial use” of coal ash which will improve soil and water quality at the site. Under this agreement MCC was expected to close the dump. However, MCC has continued to operate well beyond the planned closure date and recently announced plans to begin accepting coal ash from an additional power plant starting in 2017.

The dump has been routinely in violation of state laws including the Clean Streams Law, Air Pollution Control Act, and Surface Mining Control and Reclamation Act; as well as federal laws including the Resource Conservation and Recovery Act; and the Clean Air Act. Despite this history of violations, DEP is considering renewing three permits for the site: the Coal Refuse Disposal Area (CRDA) permit, the Air Quality Operating permit and the National Pollution Discharge Elimination System (NPDES) permit.

On June 13, 2013 the DEP held a hearing to take public comments on the Coal Refuse Disposal Area (CRDA) permit in which dozens of residents demanded that the site be shut down. Public comments and hearings are expected in the coming weeks and months regarding other permit renewals. Despite being much larger than the population of LaBelle, the prisoner population has never been included in the public participation process.

ALC believes that the failure to consider the impact of this site on the prisoner population represents a grave oversight that poses a threat of severe harm to an already vulnerable population. Coal ash contains many chemicals that are toxic to humans including arsenic, boron, cadmium, chromium, lead, mercury, and selenium. The most likely form of exposure to these toxins is by breathing in dust from the site. Ash is routinely seen blowing off of the dump and out of the trucks that carry it. Black dust, presumably from the site, accumulates on houses in the town of Labelle as well as on the prison grounds. The chemicals in coal ash can cause or contribute to many serious health conditions including: skin, eye, nose and throat irritation; asthma; emphysema; hypertension; anemia; heart problems; nervous system damage; brain damage; liver damage; stomach and intestinal ulcers; and many forms of cancer including skin, stomach, lung, urinary tract, and kidney cancers

We understand that many residents of LaBelle suffer from headaches, fatigue, respiratory problems, kidney failure, and several forms of cancer. We have heard reports that some prisoners are already experiencing serious health problems potentially caused by exposure to toxic coal ash.

The ALC is aware of the human rights crisis inside of Pennsylvania prisons, which is currently the only state prison system ever to be under investigation by the Civil Rights Division of the U.S. Department of Justice. Illnesses that are handled with ease outside of the prisons can often become far more complicated and harmful inside these institutions. Prisons have limited budgets and staff to provide health care, and the antagonistic relationship between prison staff and prisoners often leads to further inadequacies in care.

During the past several years, we have learned of a consistent pattern of human rights violations inside of Pennsylvania prisons, including dozens of documented incidents at SCI Fayette. We know how readily prison authorities will hide inconvenient evidence of substandard conditions, neglect, and mistreatment.

For the above reasons, ALC has initiated a fact-gathering effort regarding this matter in collaboration with the Human Rights Coalition, a statewide organization of prisoners, their families, and human rights defenders. We are concerned that state prisoners are being ignored in regard to this issue despite their being the most impacted population in the region. This situation is intolerable and un-democratic, and has no place in a society that values health and human rights.

Given the absence of any consideration of the LaBelle Site’s impact on prisoners, the preliminary reports we have received regarding serious harms to prisoners health, the history of regulatory noncompliance, and recent reports of continuing non-compliance, the ALC strongly opposes renewal of the Air Quality State Only Operating Permit.

III.           ALC REQUESTS A PUBLIC HEARING FOR PERMIT 26-00057 IN ACCORDANCE WITH THE GUIDELINES FOR ENVIRONMENTAL JUSTICE AREAS.

Pursuant to 25 Pa. Code § 127.428, ALC requests a public hearing for air quality Operating Permit 26-00057. In addition, as the LaBelle Site is being treated as an Environmental Justice area, the Department must follow the lead of the Office of Environmental Advocate and require the appropriate heightened public participation requirements and permit review scrutiny. We request that the public hearing be held in a location convenient for the residents in and around LaBelle, such as the LaBelle/Luzerne Fire Hall, and at a time in the evening that enables those who work to attend and share their concerns.

IV.           CONCLUSION: THE DEPARTMENT MUST DENY THE RENEWAL APPLICATION FOR OPERATING PERMIT 26-00057.

As demonstrated above and in other submissions presented in this matter, MCC has failed to follow legally-required protocol, posing an extraordinary risk to human health. We urge the Department to deny the renewal application for the reasons stated above. The ALC strongly opposes renewal of the Air Quality State Only Operating Permit, and will continue to pursue this matter to ensure that the human rights of prisoners are not ignored.

Sources

[1] Pennsylvania Department of Corrections Monthly Population Report As Of August 31, 2013, page 1, accessed at: http://www.portal.state.pa.us/portal/server.pt/document/915870/monthly_population_pdf.

[2] 25 Pa. Code §127.422.

[3] 25 Pa. Code § 123.2; 25 Pa. Code § 123.1(a)(9).

[4] 25 Pa. Code § 127.

[5] Nicholas J. Waryanka, Air Pollution Control Engineer, Air Quality Program, Pennsylvania Department of Environmental Protection, “Review of Application for Plan Approval Coal Refuse Reprocessing Facility, Matt Canestrale Contracting, LaBelle Site, Luzerne Township, Fayette County,” July 8, 1998.