There's Something About Vernon (and ADEM)

Vernon Barnett (far R) & gang with "Lucy" June 2010

Perry County, Alabama's coal ash tragedy serves as a clear warning of what Alabama shouldn't do again. Thanks to ADEM's Phil Davis and Vernon Barnett, along with Representative Canfield-R and all the members of the Alabama House Committee on Commerce and Small Business, through a spineless "voice vote" history is set to repeat itself all over Alabama.

In a follow up to our last posting of the Wildlaw Community Action Alert on Canfield's HB50 coal ash bill, now set to proceed ahead with SB80 sponsored by Senator Del Marsh-R, Alabama is careening towards a disaster that will allow coal ash to be dumped in private and public landfills statewide.

The lessons of Perry County have yet to be learned, and despite what happened and is still happening there, ADEM is aggressively lobbying the legislature to allow coal ash to be dumped in landfills statewide.

ADEM has a new hired legal gun in Allison Vernon Barnett, who is acting as the point man for the new regulation, and Mr. Barnett's background has us concerned.

There's something about Vernon that is more than a little unsettling.

We understand from inside sources that Barnett has been on the job for 6 weeks or so and we have to wonder, given his background, how he can claim to be so knowledgeable about coal ash in such a short amount of time. How does a former legal adviser to the Governor and Department of Corrections Deputy Commissioner become the right man for a job with ADEM?

Mr. Barnett seems to be acting in the capacity of Alabama Power lobbyist by proxy, more so than state environmental agency representative charged with providing the senatorial committee of Commerce, Transportation and Utilities with accurate information of what SB80 really means.

How did this happen? How did Mr. Barnett become the choice to be an attorney with ADEM when his qualifications have nothing to do with environmental issues? Was he put into place at ADEM for a reason? Who put him there?

A recorded call to Governor Bentley's office at 10:00 on March 10, 2011 revealed the answer:

 "Governor Bentley's office."   

Good morning, I called yesterday and asked to speak with the Governor's appointment secretary and I didn't get his name.
 "That would be Joe Summerall."   

Could I speak with Mr. Summerall?  
"Hold please."  
"Governor Bentley's office, this is Wesley Helton - may I help you?"   

I called yesterday to find out if Governor Bentley made the appointment for Vernon Barnett over at ADEM. No one returned my call. Can you tell me if Vernon Barnett is a Governor Bentley appointment?  
"No sir, he is not."   

Can you tell me when he was appointed?  
"No sir.  All I know is it was not an appointment by Governor Bentley and I don't know if it was done during Governor Riley's term during or before the interim."  

Here's a bit more on Mr. Barnett's background:

1.) Served as Assistant AG under Bill Pryor

2.) Personal Legal Adviser and Chief Ethics Officer to former Governor Bob Riley

3.) Appointed by Governor Riley in 2006 to serve as the head of the task force on Prison Reforms and as Deputy Commissioner to the Alabama Department of Corrections

4.) "Strongly recommended" by DOC Commissioner Allen to succeed him in January 2011

(Governor Bentley appointed Kim T. Thomas as Interim Commissioner)

5.) Considered for judgeship for the Republican Civil Appeals Court (RCAC) as one of two possible appointees by Governor Bentley

We're trying to arrive at some plausible explanation for why Mr. Barnett did not succeed Allen, or become the replacement for Judge Kelli Wise on RCAC, and instead wound up as an ADEM attorney who seems to be in place to push coal ash regulation on a fast track.

So far we have not come up with one, nor have others, but questions about Barnett and who appointed him to ADEM were met with unusual resistance.

All departments we contacted, with the exception of the Governor's office, were evasive with information about when Mr. Barnett was hired by ADEM. Sources tell us that the EMC, which oversees ADEM, responded to the query with "I'll have to ask Mr. Barnett for his permission to release that information." Mr. Barnett is a state employee, whose salary is paid with state dollars, information on his hire date is not intrusive in nature, nor is out of line for public citizens to inquire about.

But almost no one was answering the simple question. Why?

And why is Mr. Barnett the state agency point man for the coal ash regulation bill?

Something is very wrong in this scenario, and we suspect it has a lot to do with the Big Mules of Alabama Power, who are seeking a cheap and unaccountable avenue to rid themselves of massive amounts of coal ash piling up by the thousands of tons at their statewide facilities.

But it won't stop there if Mr. Barnett and AP get their bill railroaded into law--classifying coal ash as a solid waste will open the doors for Alabama to become the nation's dump for coal ash, in the same manner it has become the nation's garbage dump.

The state of Alabama has some of the lowest dumping fees in the nation, coupled with weak and inconsistent (and many times non-existent despite ADEM's claims) monitoring and enforcement over what and how much waste is placed in our landfills. Mr. Barnett is claiming, according to our sources, that ADEM will utilize "strict, established practices we have on landfills to ensure that proper procedures are followed."

ADEM has had that opportunity before and they have failed miserably to live up to their promises. Perry County is a prime example of that in addition to the mercury contamination from the Olin Corp. in McIntosh, Alabama. Phil Davis, Chief of Solid Waste Management for ADEM, and self proclaimed author of HB50/SB80 had this to say about the Olin landfill contamination:

Overall, the situation poses "no immediate threats to human health or the environment," said Phil Davis, Chief of the Industrial Hazardous Waste Branch for the Alabama Department of Environmental Management. 

Here's what they already knew about the area:

Officials have known for decades that parts of the town have been heavily contaminated by mercury. Until 25 years ago, Olin Corp. used mercury to produce chlorine. In 1984, the company and surrounding grounds was listed as a federal Superfund site, which means it is one of the nation's most contaminated places. An area described as a favorite fishing hole, the Olin Basin, has been off limits to the public because of contamination there.

In the 21 years officials have known the basin was contaminated, they have not asked Olin to clean it up.
(Source: Mobile Press-Register June 8, 2005 "Meeting on Mercury Held Anger and Confusion"
Record Number: MERLIN_2244640)

More on this and the dangerously flippant attitude of ADEM and how lax the agency is on following federal guidelines follows below. The same guidelines that Mr. Barnett claims ADEM will adhere to if the EPA changes the classification of coal ash. Note that in the following passages on Olin that ADEM went below the federal guidelines in the classification of the mercury waste:

"There was mercury contamination in the groundwater in the past at that landfill. Now ADEM has authorized mercury-containing wastes to be disposed of there,"David Ludder said. "If listed hazardous waste can go to any landfill in the state of Alabama, then all communities around landfills are in jeopardy."

The complaint argues that the mercury wastes from Olin appear to be a federally regulated hazardous waste known as KO71, although ADEM documents from 2005 show that the agency decided not to designate Olin's wastes as KO71. Ludder said it will be up to the U.S. attorney to decide if the decision by ADEM's Phil Davis was in keeping with federal law.

Testing by ADEM, Olin and the Press-Register showed that the material moved to the landfill contained mercury at levels up to 220 parts per million, which is actually higher than the mercury levels typically associated with KO71, according to EPA documents.

Scientists have published peer-reviewed papers about the unique dangers posed by Olin's brine wastes deposited around the company's McIntosh plant in Washington County.

Heaps of the wastes sat for decades along one of McIntosh's main roadways, which was itself covered in the mercury-contaminated material. ADEM has insisted that the presence of the material posed no threat to the public. 

In March, ADEM maintained to the Press-Register that the material was not hazardous because Olin generated it in the 1950s and 1960s, before the creation of modern environmental laws. 

Ludder's filing and documents on EPA Web sites suggest that so long as hazardous wastes generated before the modern laws were drafted in the 1970s and 1980s sit undisturbed on private property, they are immune from being handled under the modern regulations. But when those wastes are moved, they fall under the modern hazard waste regulations.

ADEM approved Olin's hauling of more than 1,000 dump truck loads to the Timberlands landfill. Under the law, Ludder said, the material was considered hazardous waste the moment that Olin began putting it onto trucks with bulldozers.
(Source: Mobile Press-Register, September 22, 2007 "Lawyer Accuses ADEM and Olin Corporation of Illegal Dumping" Record Number: MERLIN_5551361)

If past history is used as a guide in determining credibility and believability of our state agency, we submit that ADEM's is wholly ineffective when it comes to wastes, toxic or otherwise, being placed in Alabama's landfills. Simply based on their past actions in the same type of scenario as the the coal ash bill currently is, which involves more dangerous materials being placed in our landfills, the department has little to zero credibility in any of its claims to the legislature and the press.

All this really amounts to is the moving of coal ash from one point to another and ADEM is looking to cash in on the process with the legislator's 'blessing' through this bill. Our source tells us that Mr. Barnett was asked about what would occur if SB80 was not enacted, and his response was that "industries and the utility companies would have to go to private landfills and deal with them directly for disposal" in effect, cutting the department out of any profits.

What is probably driving this current legislation is the age and size of Alabama Power's coal ash ponds. AP does not want to have a disaster on their hands similar to the TVA Kingston Spill. They know their coal ash ponds are at capacity, with most of them in excess of 400 thousand tons, in addition to them being decades old and not constructed with modern engineering precautionary methods.

The Gorgas Plant coal ash pond (Rattlesnake Dam) was inspected by the EPA in 2009. The report that was issued by the EPA on the site was more redaction than information. AP claimed "CBI" (confidential business information) and "proprietary privilege" for the redacted information, which is in process with the federal EPA, to determine if they will allow the CBI to stand. They assume an additional posture at the Gorgas Plant linked below.

A decision will come down this year and AP will immediately appeal it, further delaying the release of vital information to the public and watchdog groups. AP (Southern Co.) operates with *more secrecy than any other utility company in the United States and they aim to keep it that way. In the meantime, in absence of SB80 becoming law, their coal ash pond at the Gorgas site listed as a "significant hazard", along with the other four around the state, will continue to grow larger and more dangerous.

*(AP official who signed the linked letter, Matthew Bowden, is an AP lobbyist too)

They need a solution and they need one quickly. Hiring 26 lobbyists to persuade our lawmakers to pass legislation to their benefit is their way of ensuring favorable legislation. Having Mr. Barnett, who's only been on the job a short 6 weeks and cannot possibly be an authority on the issue given his background, seems to suggest he is where he is by design courtesy of former Governor Riley.

In our opinions, this is political payback by the former administration to one of its largest campaign contributors, whose CEO, Charles McCrary, is a personal friend of Mr. Riley's.

Riley's economic development, particularly in the Mobile area, has come at a high price for that community. ADEM has been accused, once again, of ignoring citizen's concerns and mounds of compelling evidence of serious threats from the develop-at-all-costs mantra of the Riley administration. Mr. Barnett is symbolic of a greater problem more so than he is a solution to certain future issues with the coal ash proposal.

It also important to note that in the House Committee of Commerce and Small Business, that Representative Canfield's HB50 passed the committee on a voice vote. Voice votes are designed to give politicians political cover by denying an official record of each member's vote on an issue. It is the action of political cowards and the object of scorn in the public eye of accountability and transparency. Voice votes should be non-existent in our political system and despite calls for an end to this dubious practice, our politicians disavow their campaign promises of transparency every time they resort to this cloak of political cover.

Representative Canfield and Senator Scott Beason passed a Joint Resolution in 2010 HJR18/SJR27for states rights, which has the effect of putting in place state sovereignty with the intent of not requiring Alabama to follow federal laws. This idea has been thrown to the Republican party and Tea party as 'red meat' in a push back against health care. What gets lost in translation, in the ramped-up rhetoric against Obamacare, is that states rights sovereignty also covers following EPA rules.

We understand the distaste for government mandated health care and agree with it, but that is not all state sovereignty will affect. Big business uses both parties as pawns and distracts them with the Obamacare issue, when their real agenda is to gut regulations and de-fang environmental enforcement by the federal government.

Republicans downplay why the EPA started --once rivers started catching fire because of the lack of responsibility by big business, all bets were off. Industry failed miserably in policing themselves, forcing the federal government to intervene.

What's changed since the 1970's? Air & water is cleaner, but the constant fight against both from business and certain states reminds us that industry doesn't like following the rules when there's huge profit involved. They continue to cut corners to increase profits. They will put communities in danger without telling anyone. They will lie. Following the rules is not a big part of the corporate money machine. 

The same can be said for our state agencies--ADEM and the EMC.

Before HB50 was voted out of this committee, they heard from the residents of Perry County and WildLaw's Barbara Evans:

 

Despite strong testimony, from residents who have to live with the effects of the Arrowhead Landfill, the House Committee passed the bill and it's moving on to a fast track of passage. None of these committee members had the courage to do what is right and they should be held fully accountable for their actions. So should Mr. Barnett. And ADEM.

Representative Canfield pre-filed this bill on Feb 24th, a full week before the legislature began session, which tells us that there were probably meetings and conversations occurring out of the public view about the idea. This bill started out in secrecy, left the House Committee by secret vote, and the legislators are following the bidding of ADEM and the AP lobbyists to a bad end, for us.

They simply do not or will not educate themselves about the real dangers of coal ash. It's more expedient for them to believe what they are told by biased interests. Some legislators who were contacted about the bill responded with the unbelievably naive response of: "Is coal ash really that toxic?'

We submit they, the House Committee, have failed to do unbiased research on this very serious issue and are completely lacking in political will. Will the Senatorial Committee follow suit?

SB80 is a bad bill, a dangerous bill, and no other community in Alabama should become the next Perry County. Mr. Barnett is being highly disingenuous in his claims that this is a "good, first step of needed regulation" to the Senatorial Committee of Commerce, Transportation and Utilities. No, it is not. It's a ploy to exact a result in complete favor of corporate interests and ADEM's bottom line. Nothing in this bill will result in any protection for communities and citizens, in fact, the opposite will occur.

The committee will meet again on March 24th and make its decision.

Citizens of Alabama need to understand that every community in the state, which currently has a landfill, and those that do not yet have one, but will, are targeted to become the next sacrifice zone through SB80. We would strongly urge all of you to get on the phone, write letters (preferred over emails) and let all of the legislators know that you are firmly against this legislation.

Please refer to the WildLaw Community Action Alert preceding this posting and ask Ms. Evans what you can do to help. We, as citizens of this state, must wake up from our slumbers, and become the rudders of righteousness in controlling our own ships of destiny before it is too late. The way you do that is that you speak up firmly and often during this legislative session.

The Big Mule wagon is well-organized in the state house and they are corralling our legislators on a daily basis to represent their interests before the interests of Alabama's citizens. They are willing to subject all of us to grave dangers to save a few dollars of their corporate billions, and escape strict regulation and compliance through their enablers at ADEM, who are paid by your tax dollars.

None of us would pay someone to purposefully poison us and place our communities and families in clear and present dangers, but the harsh reality is that will be the end result of doing nothing and remaining silent.

We elect our leaders to act in ways that will benefit us and our communities. Alabama politicians assume that a yes vote means that we agree with everything they do and we have given them a mandate to legislate at will, with no further input by us required or wanted. Representative government soon morphs into a dictatorial style of government that proceeds in a vacuum of corporate influence.

For many years, our political process in Alabama has put corporation first and citizens second. Big corporate donors have made slaves of our political leaders who in-turn enslave us with bad legislation. They refuse to be accountable to us, and for the most part, view us as inconsequential to the longevity of their political futures. 

We're a commodity to be exploited every four to six years with promises of "true servants of the people" who are quickly discarded in the interim--the important time in which laws are enacted that have serious effects for each and every one of us. And what about our children, who are much more susceptible to toxins than we are as adults, and who deserve our vigilant protection from the consequences of bills like this one?

(Consult your pediatricians and they'll confirm that to be long-known medical fact)

We have to live with laws we do not vote on, we do not help construct, but ones the powerful corporate lobbyists are given the unrestricted right to be fully involved in, from start to finish, and then we are forced to live with the consequences of this inequitable political process.

Edmund Burke sums this up in in two short, but powerful sentences:

When the leaders choose to make themselves bidders at an auction of popularity, their talents, in the construction of the state, will be of no service. They will become flatterers instead of legislators; the instruments, not the guides, of the people.

What will you do people of Alabama?
Do you want to become the next Perry County?
And when will you decide that citizen inertia has real and lasting consequences?

How about right now?

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