Toxic Coal Waste Exposure at PA SCI Fayette Abolitionist Law Center 2014
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No Escape: Google Earth, 2014 Exposure to Toxic Coal Waste at State Correctional Institution Fayette DUSTIN S. MCDANIEL Executive Director, Abolitionist Law Center BRET GROTE Legal Director, Abolitionist Law Center BEN FIORILLO Human Rights Coalition DEVON COHEN Human Rights Coalition QUINN A. COZZENS Legal Intern, Abolitionist Law Center Special thanks to Center for Coalfield Justice, Three Rivers Community Foundation, and to the prisoners of SCI Fayette whose correspondence laid the foundation of this report. No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette AERIAL VIEW OF SURFACE PERMITS — LABELLE, PA Abolitionist Law Center | Human Rights Coalition I. OVERVIEW I have four years left on my sentence and that could be a death sentence with the contamination here.1 A 12-month investigation into the health impact of exposure to toxic coal waste on the prisoner Surrounded by “about 40 million tons of population at State Correctional Institution (SCI) Fayette has uncovered an alarming rate of serious waste, two coal slurry ponds, and millions of health problems. Surrounded by “about 40 million cubic yards of coal combustion waste,” SCI tons of waste, two coal slurry ponds, and millions of cubic yards of coal combustion waste,” SCI Fayette Fayette is inescapably situated in the midst is inescapably situated in the midst of a massive toxic waste dump.2 Over the past year, more and more of a massive toxic waste dump. 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. The Human Rights Coalition (HRC), Center for Coalfield Justice (CCJ), and the Abolitionist Law Center (ALC) launched this investigation in August 2013. The investigation is not only ongoing, but also is expanding, as HRC and ALC continue to document reports of adverse health symptoms and environmental pollution, interview current and former prisoners at SCI Fayette, and conduct research. No Escape describes the preliminary findings from our investigation into the declining health of prisoners at SCI Fayette while providing context about the toxic environment surrounding the prison. Our investigation found: • More than 81% of responding prisoners (61/75) reported respiratory, throat, and sinus conditions, including shortness of breath, chronic coughing, sinus infections, lung infections, chronic obstructive pulmonary disease, extreme swelling of the throat, as well as sores, cysts, and tumors in the nose, mouth, and throat. • 68% (51/75) of responding prisoners experienced gastrointestinal problems, including heart burn, stomach pains, diarrhea, ulcers, ulcerative colitis, bloody stools, and vomiting. • 52% (39/75) reported experiencing adverse skin conditions, including painful rashes, hives, cysts, and abscesses. • 12% (9/75) of prisoners reported either being diagnosed with a thyroid disorder at SCI Fayette, or having existing thyroid problems exacerbated after transfer to the prison. No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette 1 • Eleven prisoners died from cancer at SCI Fayette between January of 2010 and December of 2013. Another six prisoners have reported being diagnosed with cancer at SCI Fayette, and a further eight report undiagnosed tumors and lumps. Unlike reports of health problems from prisoners at other Pennsylvania Department of Corrections (PADOC) prisons, most SCI Fayette prisoners discuss symptoms and illnesses that did not emerge until they arrived at SCI Fayette. The patterns of illnesses described in this report, coupled with the prison being geographically enveloped by a toxic coal waste site, point to a hidden health crisis impacting a captive and vulnerable population. 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. Our findings raise serious constitutional questions as well. The investigation has uncovered significant evidence that SCI Fayette may be unconstitutional based on its location. Under the Eighth Amendment to the U.S. Constitution’s prohibition against cruel and unusual punishment, prisons are forbidden from imposing conditions of confinement that deprive prisoners of basic human needs. Situating a prison in the midst of a massive toxic coal waste dump may be impermissible under the Constitution if it is shown that prisoners face a substantial risk of serious harm caused by exposure to pollutants from the dump. In addition to evidence that conditions of confinement at SCI Fayette violate the Constitution due to the prison’s proximity to the toxic coal dump, our investigation found that prisoners’ rights to medical care under the Eighth Amendment to the Constitution are reportedly violated on a regular basis. Prison officials are required to provide necessary medical care to those in their custody, and deliberate indifference to a prisoner’s serious medical needs is unconstitutional. Health is a human right, and if the patterns that have emerged during our investigation are indicative of the harms and risks that accompany confinement at SCI Fayette, then it is imperative that the prison is shut down. 2 The preliminary findings discussed below are intended to shine a spotlight on a serious and growing injustice, as well as to highlight one of the ways that mass incarceration interacts with broader concerns about environmental health and justice. Prisoners at SCI Fayette need environmental justice: access to clean air and water, prompt diagnostic care, required surgical treatment, and all other necessary medical care. Health is a human right, and if the patterns that have emerged during our investigation are indicative of the harms and risks that accompany confinement at SCI Fayette, then it is imperative that the prison is shut down. Abolitionist Law Center | Human Rights Coalition II. BACKGROUND ON THE LABELLE COAL REFUSE DISPOSAL AREA LaBelle is a small rural-Pennsylvania community in Luzerne Township, Fayette County, which is defined by two major industries: a 506-acre coal ash dump and a maximum security state prison. The dump, operated by Matt Canestrale Contracting (MCC) since 1997, receives coal ash waste from coal-fired power plants throughout the region.3 Before MCC began dumping coal ash there in the late 90s, the site was one of the largest coal preparation plants in the world, where coal from nearby mines was washed and graded.4 The “cleaned” coal was then shipped overland and by barge on the Monongahela, while the remaining coal refuse was dumped on and around the site.5 By the mid-90s, an estimated 40 million tons of coal refuse were dumped at the site, over hundreds of acres and “at depths approaching 150 feet in some places.”6 In 1994, the former owner of the site filed for bankruptcy and abandoned operations, leaving numerous legacy waste issues over the extent of the 1,357-acre property.7 In 1996, MCC purchased the entire property and subsequently entered into an agreement with the Pennsylvania Department of Environmental Protection (DEP) to engage in coal refuse disposal for site reclamation.8 The dumpsite was later restricted to its current 506-acre footprint,9 in part through the transfer of 237 acres to the Commonwealth of Pennsylvania for the construction of SCI Fayette.10 Operation of the Coal Ash Dump and Environmental Effects As discussed above, “coal refuse” describes the waste produced when coal is cleaned and graded before it is burned. “Coal ash,” on the other hand, describes the wastes produced by burning coal in power plants. MCC’s reclamation plan is to “cap” the coal refuse dump by spreading flue gas desulfurization (FDG) sludge, a liquid form of coal ash, over the entire area to create a barrier preventing rainwater from leaching chemicals into soil, surface water, and groundwater.11 The FDG cap is then covered with a mixture of dry coal ash and topsoil.12 This mixture of coal ash and topsoil is also used to stabilize a dam holding back a large pond of coal slurry (Slurry Pond 3).13 This dam is categorized as a “high” hazard, meaning that its failure is “likely to cause loss of human life.”14 In the 17 years that MCC has been operating the dump, the company has routinely been in violation In the 17 years that MCC has been operating of state and federal law.15 Most seriously from a public the dump, the company has routinely been in health standpoint, is MCC’s perpetual violation of the Air Pollution Control Act, which prohibits allowing violation of state and federal law. particulate matter to leave the boundaries of the dumpsite.16 Ash is regularly seen blowing off the site or out of haul trucks and collecting on the houses of local residents as well as the prison grounds at SCI Fayette.17 Local residents have filed numerous complaints to the DEP in recent years, but the DEP has done little more than issue notices of violation, and in rare instances assessed fines against MCC.18 No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette 3 A series of tests performed by Citizens Coal Council (CCC), a national advocacy group which filed a lawsuit against MCC in 2013 for its violations of environmental regulations, revealed the presence of high levels of toxic metals associated with coal ash in the surface and ground water near the site.19 Samples were taken at streams, wells, and drainage pipes which tested at levels of dissolved iron over 60 times greater than the Pennsylvania standard, more than 5 times the Pennsylvania standard for manganese, and 10 times the standard for sulfate.20 The most recent tests performed by CCC also found levels exceeding state or federal standards for thallium (0.4µg/L), arsenic (15.1µg/L), cobalt (33µg/L), boron (2,550µg/L), aluminum (343µg/L), total dissolved solids (4,510mg/L), and both excessively high and low pH levels.21 Testing for Stream 3, which marks the southern and eastern boundaries of SCI Fayette, found excessive levels of arsenic, boron, cobalt, iron, manganese, and sulfate.22 In the nearby town of LaBelle, the most likely form of exposure to these toxins is inhalation of the particulate Luzerne had 170 heart-disease deaths from matter that blows off the site and the haul trucks.23 2000 through 2008 — 26 percent higher Dust found on the properties of LaBelle residents reportedly included coal ash particles, which had than the national average. “Mine Dump levels of antimony, arsenic, chromium and lead consistent with levels found in ash.”24 Many residents of LaBelle suffer from chronic headaches and fatigue, respiratory problems, kidney failure, and several forms of cancer.25 In 2010 the Pittsburgh Post Gazette reported that in one section of LaBelle, “residents say there are nine cases of cancer in the 18 houses.”26 The report went on to say, “While there’s no scientific proof that fly ash or other forms of pollution are causing [these] health problems, Luzerne Township has elevated mortality levels for diseases that have been linked to pollution exposure... Luzerne had 170 heart-disease deaths from 2000 through 2008 — 26 percent higher than the national average.”27 These problems are likely to get worse with more coal and coal ash planned for the dump and the nearby river docks. On June 24, 2014, DEP renewed MCC’s air emissions permit, allowing it to transport and dump 416,000 tons of coal ash per year at LaBelle.28 However, MCC has reportedly entered into a “long-term agreement” with FirstEnergy to receive “more than 3 million tons of coal ash and smokestack scrubber waste each year,” and dump it at the Labelle site beginning in 2017.29 The agreement allows FirstEnergy to dispose of ash that would have gone to the Little Blue Run dump in Beaver County, which was recently ordered to close due to the health threat it poses to nearby residents.30 Meanwhile, the U.S. Army Corps of Engineers is granting a permit to Alpha PA to build a new coal terminal at the Labelle Dock,31 while DEP has announced its intent to increase the permitted coal throughput of the facility from 3,500,000 tons per year to 10,000,000 tons per year.32 Alpha PA is a subsidiary of Alpha Natural Resources, which was recently assessed a record fine of $227,500,000 for seven years of illegally discharging pollutants into the waters of Pennsylvania, Kentucky,Tennessee,Virginia, and West Virginia.33 4 Abolitionist Law Center | Human Rights Coalition Coal Ash and Human Health Public health experts recognize that coal ash contains numerous harmful constituents, including mercury, lead, arsenic, hexavalent chromium, cadmium, boron, and thallium.34 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.35 In its 2010 report, “Coal ash: the toxic threat to our health and environment,” Physicians for Social Responsibility summarized the risks posed by coal ash: “In short, coal ash toxics have the potential to injure all of the major organ systems, damage physical health and development, and even contribute to mortality.”36 Despite this, the U.S. Environmental Protection Agency (EPA) does not currently classify coal ash as a hazardous waste, though reclassification has been under consideration since 2010.37 In Pennsylvania, coal ash is authorized for “beneficial use” in reclamation projects, such as at MCC’s dump.38 When authorized for “beneficial use” coal ash is intended to reduce leaching and balance the pH at coal refuse sites and abandoned coal mines. However, in attempting to solve these problems “beneficial use” creates new ones by increasing the toxicity of the leachate at reclamation sites,39 while also causing air pollution as wind blows ash off the sites and the vehicles used to transport the material.40 With this in mind, it does not appear that coal ash has a legitimate “beneficial use” that outweighs its negative environmental and health consequences. Rather, it seems the classification of coal ash for “beneficial use” is designed to evade the cost of safely regulating the massive volume of coal ash created by coal-fired power plants, which is the country’s second largest waste stream.41 III. ILLNESS, NEGLECT, AND CANCER: FINDINGS OF PRELIMINARY INVESTIGATION INTO PRISONER HEALTH AT SCI FAYETTE I have 37-months in on a five to ten year sentence and fear that I will not live to see my 13-year old son.42 In August 2013, the Center for Coalfield Justice (CCJ), a Washington, PA-based environmental justice group, the Human Rights Coalition (HRC), a statewide prisoners’ rights group, and the Abolitionist Law Center (ALC) launched an investigation into the health problems at SCI Fayette. The investigation team sent surveys to prisoners inquiring about health problems and environmental conditions at the facility. As of July 2014, the investigation team has sent 152 surveys, with 63 prisoners responding to the surveys, and another 12 prisoners writing us separately to share their stories about conditions at SCI Fayette. The investigation team also visited and interviewed 4 prisoners who were dealing with particularly severe symptoms. No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette 5 Some prisoners have consented to having their names used and are identified below. Certain names have been withheld and dates have been altered in order to protect the identities of the people providing the information. All factual information pertaining to prisoner medical conditions, health care treatment, and evidence of pollution is shared exactly as reported. When reviewing the findings described below it is important to recognize that under-reporting of health problems is common amongst the prisoner population. Prisoners may be reluctant to admit health problems for fear of being perceived as weak or vulnerable. Others may be unwilling to report their health condition or complain about medical care to an outside organization because they fear retaliation from prison staff. Some prisoners are too sick to correspond about their condition, others remain unaware that their symptoms may be caused by exposure to toxic coal waste, or that our investigation is occurring. The investigation has found alarming patterns of illness. The conditions reported most frequently by prisoners are described below. In over 81 percent of cases (61/75), prisoners exhibited more than one symptom from the four main categories we used to organize the data: respiratory, throat, and sinus conditions; skin irritation, rashes, and hives; gastrointestinal problems; and cancers. Thus, the information below does not fully capture the severity of many cases in which prisoners have multiple overlapping symptoms. For example, the list of symptoms from Joshua Turner was typical of many reports we received from prisoners: I’m writing to notify you of the severe problems I’ve been having since I have been in SCI Fayette for over 2 years. I’m going to give you a list of the problems I’m having: 1) hair loss; 2) [recurring] rashes; 3) diarrhea; 4) vomiting; 5) weakness and dizziness and sickness feelings in my stomach; 6) when I blow my nose blood comes out; 7) shortness of breath; 8) burning in my eyes; 9) throat problems; 10) headaches; 11) burning when I pee.43 Correlation Between Illness and Confinement at SCI Fayette Unlike prisoners writing about health problems from other PADOC prisons, most prisoners from SCI Fayette discuss symptoms and illnesses that did not emerge until they arrived at the prison. The patterns of illnesses described below, coupled with the prison being geographically enveloped by “about 40 million tons of waste, two coal slurry ponds, and millions of cubic yards of coal combustion waste,”44 suggest that environmentally toxic living conditions are causing prisoners to become sick. Prisoner accounts of symptoms graphically illustrate this correlation: I have been evaluated by medical when I came here and everything was fine and I was healthy. Since being here I get nosebleeds 2 to 3 times a week. I constantly got a headache. I have known that my vision has dropped a lot and it is hard to see. I wear glasses, and they are now not strong enough to see good. 6 Abolitionist Law Center | Human Rights Coalition I was also checked for asthma when I got here due to having it in the past. And I was fine. I haven’t had no problems with breathing in years. More than 8 years [since] I have had to use an inhaler. Since being in this jail I am wheezing on a day to day basis.45 In April 2013, Marcus Santos wrote: [S]ince transfer to this facility on February 14, 2012 I’ve had to endure numerous medical problems... I have required emergency medical treatment eight times due to the swelling in my face and throat. [S]ince my transfer to this facility on February 14, 2012 I’ve had to endure numerous medical problems. ie: Rashes through out my body that hurt and keeps me up all night. Extreme swelling of various parts including my throat making it difficult to breathe. My face would swell and pictures were taken showing the condition of my eyes and my vision still has not returned fully to them. I have required emergency medical treatment eight times due to the swelling of my face and throat.46 This relationship between confinement at SCI Fayette and declining health was further reinforced when Marcus Santos was transferred to another prison. Since Marcus arrived at SCI Smithfield his symptoms subsided substantially or completely. He still suffers periodic swelling and outbreaks of rashes, though they are less frequent and less severe. He no longer experiences nausea or shortness of breath. He still suffers from dizzy spells, but these are also less frequent and less severe. His muscles still hurt, however, which is something else that began at SCI Fayette.47 Another prisoner shared this story: Second week of coming into SCI Fayette, I came down with flu-like symptoms. A few months later I maybe would eat dinner 3 times a week, I cut out breakfast and lunch altogether because I had no appetite, and was too fatigued to walk to the chow hall. I no longer had the strength to workout... Just constant headaches and loss of appetite and physical motivation.When I took showers, I noted that my eyes would be burning and my vision would be blurred for about 15 minutes, afterwards, and it would feel like sand was in my eyes.These symptoms have been going on almost since the time I came into Fayette, but now that I’m at [another prison] I’m eating every meal, working out every day, and experiencing no headaches...48 The emergence of these symptoms upon arriving at a prison engulfed by toxic waste and the abruptness with which they subside upon being transferred strongly suggests a causal relationship. The patterns of illness uncovered during our investigation are also consistent with exposure to toxins found in coal ash and refuse. Respiratory,Throat and Sinus Conditions Respiratory, throat and sinus conditions are the most commonly reported health problems. Over 81% (61/75) of prisoners reported one or more of the following symptoms: runny nose, nose bleeds, sinus infection, cough, sore throat, swollen No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette 7 throat, shortness of breath, lung infections. In most cases these symptoms have become chronic conditions that cannot be explained as periodic colds. One prisoner who has been incarcerated at SCI Fayette since 2004 reports a long history of respiratory and sinus problems that originated upon his arrival at the prison. His symptoms began with “throat and chest congestion” and “itchy red eyes.” Then, “I started to have other symptoms, like when my lymph nodes in my neck swelled to the size of walnuts for no good reason... the development of a chronic sinus infection... followed by the cyst that grew under one of my teeth that led to it having to be pulled... I am currently fighting a lung infection for which I am on breathing treatments.”49 Lance Rucker reported “serious throat irritation” and chronic wheezing shortly after arriving at SCI Fayette,50 while another prisoner wrote of suffering from a severe cough for eight months that caused him to “cough so hard” that he developed “blood blisters” in the back of his throat.51 Michael Dean described throat irritation that was so severe he lost his voice: In December of 2012, I lost my voice completely. My throat was in constant pain, yet all medical did was to try whatever drug they felt would cure what was wrong with me. I was given mostly drugs used to treat a sore throat. By February or March, I was given a drug called “Claritin,” as they believed I was suffering due to “acid reflux.” I was eventually taken to UPMC in Pittsburgh, where it was found I had a large growth on my vocal chords. I underwent surgery on April 27, 2013, where the growth was removed. I have regained some vocal abilities but I’m not the same as before. Also, I am still having sinus troubles as there seems to be a recurring growth in my right sinus.52 Anthony Willingham reported a similar occurrence: After six to nine months here, I began to develop more frequent shortness of breath and heavy mucus discharge. It became so chronic that I had to have I was told by the medical department that it breathing treatments daily — morning and evening.The cough became so violent that I developed a chronic hoarseness and was just a “scratchy throat — gargle with scratchy throat.To this day I can barely talk. I was told by the medical department it was just a “scratchy throat — gargle warm water.” A year later I found out it was with warm salt water.” far more than a scratchy throat!... Upon A year later, I found out that it was far more than a scratchy seeing a throat surgeon at UPMC... he put a throat! It was around this time that I discovered a growth, in my mouth, under my tongue.The dental surgeon removed it camera down my throat...and showed me the and sent it out for biopsy and it came back negative; however, polyps on my vocal chords. the growth came back in two weeks, twice as big.This time after a second biopsy, it came back positive — I had cancer. Upon seeing a throat surgeon at UPMC (Dr. Jonas Johnson) he explained to me the type and location of the cancer; moreover, he questioned me about how long my voice was so 8 Abolitionist Law Center | Human Rights Coalition hoarse? I told him about a year-plus. He put a camera down my throat (still shaking his head in disbelief) and showed me the polyps on my vocal chords. It wasn’t just a scratchy throat!53 Marcus Santos experienced swelling in his throat, as well as on his face, arms and legs, which became so severe that it restricted his breathing, causing him to fear for his life. A doctor outside the prison who examined Marcus recommended his transfer to another prison because his condition was life-threatening. Marcus reported: I suffered almost everyday of the 15 months I was at that prison. I almost died due to throat swelling several times. Given tums for throat swelling and told that if I start choking there is nothing that he can do for me. At that point it became clear to me that I am being left for dead. With no other course to take or relief in sight I called my brother and told him that I don’t believe I’m going to make it through the rest of my time and to please take care of my son.54 Skin Irritation and Rashes 52% (39/75) of prisoners report some type of skin condition. Many note that their skin is chronically dry and irritated, and a number report severe rashes and hives. Four weeks after being transferred to SCI Fayette, Roy Davis wrote, “My face began itching and burning about three days after being here and now it’s completely inflamed and hurts to the touch.”55 Soon after his arrival, Marcus Santos developed a rash on his left side with large welts that was so irritated it disrupted his sleep for months.56 In another case, a prisoner developed a rash that covered three-quarters of his body with large bumps a half-inch in diameter. In 48 hours, “The bumps grew into one big mound on my arm. Almost my entire body was covered a week later. The bumps were the color of my skin. They leaked fluid. They are painful. They felt like needle pricks, some felt like needle stabs.” Prison medical staff later diagnosed his condition as psoriasis.57 When asked to describe any additional health problems, another prisoner reported “Abscesses (boils)… keeps comin and going first under my L armpit, then R, and then in my ear canal, and in my large intestine.”58 A few prisoners also reported raised bumps or rashes that would bleed.59 Gastrointestinal Tract Problems Well over half (51/75; 68%) of prisoners reported problems with their stomachs and digestive tracts, including: heart burn, stomach and abdominal pain, vomiting, diarrhea, bloody stools, duodenal ulcers, ulcerative colitis, and intestinal polyps. For many prisoners, these symptoms have become chronic, lasting multiple years, and suggesting systemic problems, rather than common infections. Five prisoners report persistent bloody stools. One prisoner wrote that he had “blood in feces and urine, as well as constant vomiting.” These symptoms were accompanied by “headaches, severe skin dryness, blurry vision, kidney and liver No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette 9 pain,” and kidney stones. None of these symptoms were present before the prisoner arrived at SCI Fayette.60 Another prisoner wrote, “Since I’ve been here I’ve been unable to have a regular bowel movement.”61 Three prisoners have been diagnosed with ulcerative colitis, a rare disease in which ulcers form in the colon causing severe diarrhea and bloody stool. Some research suggests that environmental factors can contribute to the development of ulcerative colitis and other inflammatory diseases in the gastrointestinal tract.62 One of the prisoners with the disease explains: I was having frequent bowel movements that consisted of nothing but diarrhea and blood... As time went by, my condition got worse to where I could not even drink water without having a bloody bowel movement... I was taken to Allegheny General Hospital’s emergency room... and was diagnosed as bleeding internally and severely dehydrated. I was given a colonoscopy and was diagnosed with ulcerative colitis.”63 Cancers Between January 2010 and December 2013, seventeen prisoners died while at SCI Fayette.64 Eleven of these deaths (64.7%) were due to cancer, four (23.5%) were caused by heart attacks or strokes, and two were caused by liver failure (11.7%).65 Of the 75 prisoners we received responses from, six reported being diagnosed with cancer while at SCI Fayette (8%). Eight of the prisoners we communicated with reported undiagnosed tumors and polyps (10.6%). Of the total diagnosed cases of cancer, both dead and living, the type and frequency of particular cancers were as follows: lung cancer (3); brain cancer (2); colon cancer (2); tongue cancer (2); liver cancer (2); tonsil cancer (1); stomach cancer (1); bladder cancer (1); prostate cancer (1); lymphoma (1); and leukemia (1). Prisoners reporting undiagnosed tumors and polyps mentioned the following affected areas: testicles (3); vocal chords (2); intestines (1); lungs (1); and unspecified (1). Some of these undiagnosed growths, tumors, and polyps have been surgically removed or recommended for surgery by outside medical experts, while others staff delay diagnostic treatment, and are have yet to be seriously examined. Many prisoners report that prison medical staff delay diagnostic reluctant to conduct more expensive testing treatment, and are reluctant to conduct more expensive testing that may reveal the presence of cancer. Such that may reveal the presence of cancer. reports reveal what amounts to a pattern of medical neglect, where prison medical personnel consistently attribute prisoner complaints to minor ailments, which are then treated with antibiotics, antacids, allergy medication, antibacterial lotions, aspirin, and ibuprofen. As a result, many of the cancer diagnoses reported to us were done only after the disease had progressed to the point that the prisoner needed emergency hospital care. For instance, an individual diagnosed with brain cancer wrote: Many prisoners report that prison medical 10 Abolitionist Law Center | Human Rights Coalition I’ve been asking medical for some type of CT scan for years because I was having headaches everyday.They keep telling me it was my sinus but I knew it was more than that.They sent me out for a CT scan and when I return, the medical staff here told me nothing was on my CT scan and they did not see anything.The day after that I passed out and was rush to Allegheny Hospital.They took another CT scan and found the cancer, it was at stage four and went to my skull.66 Two prisoners shared a similar story regarding the late Rafael Rivera, a prisoner who had been complaining of stomach pains for months only to be treated with heartburn medication. By the time he was “carried to medical where x-rays were finally taken [doctors found] a stomach cancer that was far along.”67 Official PADOC records obtained via a Right-to-Know request confirm that Rafael Rivera died of stomach cancer at SCI Fayette on June 15, 2012.68 In another report, Paul Kimble writes: I have had surgery done at UPMC hospital and Westmoreland hospital one for a hernia and another at the other hospital for polyps in my intestines, where they had to go through my colon to have one cut out plus there is another one still there that will have to be cut out. I was bleeding in my stool here in this prison. I was two pints low in blood, when I was finally taken out to the hospital.69 Anthony Willingham similarly reported having surgery to remove a cancerous growth from under his tongue, but being left with polyps that still need to be removed: Dr. Johnson assured me that all would be well again. He would remove the cancer in one surgery and the polyps during the second. Be advised that the second surgery never happened. The Department of Corrections and or the medical contractor (Wexford Medical) refused to pay for the second surgery, stating that it was an elective procedure, not a life sustaining procedure.70 David Ladlee reports that SCI Fayette prison officials have repeatedly denied a CT scan to monitor two undiagnosed masses found in his lungs, despite having been recommended by outside medical experts: I am appealing Ms. Berrier’s findings of the initial review response. She states that, “Your reports were reviewed for the past several years and there has been no change.”This is not factually true.When I was at SCI Rockview in late 2009, a mass was found in 1 of my lungs. In 2011, I was sent to Westmoreland Hospital from here for treatment of pneumonia. While there, a CT scan was performed which showed not only the 1 mass but a 2nd mass was found.The treating doctor at Westmoreland Hospital had ordered a series of follow up CT scans to track the growth of these masses in my lungs. There has been changes in the past several years and for Ms. Berrier to state that there has not been changes is mind blowing. No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette 11 Ms. Berrier in the initial review had also stated that the CT scan, “is not medically necessary at this time.” ...You can see the masses in my lungs by just looking. This is why CT scans are necessary. I realize this costs money but I am under your care, custody and control. At sick-call in early summer of this year I was told that a CT scan was ordered.This past September I had written a request inquiring about the CT scan in which a M. Hancock responded that, “The CT scan in August was cancelled.” Ms. Berrier in the initial review response had also stated that the CT scan, “Is not medically necessary at this time.” When is medically necessary, when I am dead? You can see the masses in my lungs by just looking.This is why CT scans are necessary. I realize this costs money but I am under your care, custody and control.71 There are almost certainly more cases of cancer at SCI Fayette than our preliminary investigation has uncovered. Along with the cases of undiagnosed growths, many prisoners report knowing of others who have cancer.The investigation received unconfirmed reports of three guards at SCI Fayette who have been diagnosed with kidney cancer in recent years, and another with throat cancer.72 It is possible that some prisoners who have become ill with cancer while at SCI Fayette were subsequently transferred to other prisons, complicating the process of counting people made ill at SCI Fayette. Prisoners report that the severely ill are often transferred to SCI Laurel Highlands, a prisonhospital, once they become so sick that death appears imminent. Other Symptoms and Illnesses Some prisoners report experiencing repeated instances of kidney stones for the first time while at SCI Fayette: “A year ago I had surgery to have [kidney] stones removed, and once again in June 2013 (two surgeries). Now here it is no more than three months later and I was sent to Uniontown Medical Center for a CT scan and the pictures show I have more kidney stones than ever before.”73 Another prisoner writes: “[I]n my four years at Fayette, I had several bouts with passing stones. I never had any trouble prior to going to Fayette, but I’ve had trouble several times each year.”74 Two other prisoners reported having their gallbladders removed, in one case due to gangrene.75 Several prisoners report extreme weight loss. In one instance, a prisoner reported losing 54lbs in a month and a half.76 Another prisoner reported losing 40lbs over a period of three months.77 Thyroid conditions were reported by 12% of prisoners (9/75). The range of symptoms reported by these prisoners included irritation and swelling in the throat, bloody noses, headaches, fatigue, dizziness, stomach pain, diarrhea, blurry vision, hair loss, ear pain and infections, problems with memory and concentration, numbness, muscle spasms, an inability to control arms and legs, and severe weight loss. 12 Abolitionist Law Center | Human Rights Coalition Nicholas Morrissey, a prisoner diagnosed with Graves Disease, which is an autoimmune disorder that causes hyperthyroidism, writes: I am an inmate at SCI Fayette. I’ve been here since March 2008. About a year ago my health went downhill. One day I woke up and it was difficult for me to walk and see.This continued for a couple of days and my symptoms got worse. I started getting dizzy and I couldn’t keep my balance and I started getting a numbing feeling in the left side of my body… I started getting more symptoms including loss of function in my arms and legs, blurry vision, confusion, memory loss, hair loss, laziness, I can’t even control my body anymore… My life diarrhea, tingling sensations in my face, arms, and legs, difficulty walking, extreme weight loss, and non stop muscle spasms. I has been completely changed in the last year… can’t even control my body anymore… My life has been I went from a athletic and healthy person to a completely changed in the last year… I went from a athletic and healthy person to a frail sickly man who can barely walk… frail sickly man who can barely walk… There are dozens of other inmates who have just recently come down with the same thyroid condition I have…78 Another prisoner reports being told that there is no treatment for hyperthyroidism: From March 2012 until June 2012 the medical staff here at SCI Fayette gave me a bloodtest at least 10 to 15 times. In April 2012 as a result of the bloodwork I was told that I have hyperthyroidism.The doctor also told me that there isn’t any treatment for hyperthyroidism… that they can only treat hypothyroidism. Finally, I found a medical dictionary that states that there is two types of medication for hyperthyroidism.79 Medical Care at SCI-Fayette Prison medical care in Pennsylvania is notorious. Healthcare services in Pennsylvania prisons are sub-contracted to for-profit companies, which have an incentive to keep healthcare costs as low as possible. A recent report on privatized healthcare in PADOC prisons by the CLEAR coalition and SEIU Healthcare explains, “[C]ompanies cut costs by creating obstacles to care, hiring too few staff, employing inexperienced staff, and skimping on medication.”80 These problems are borne out in our survey. Prisoners are required to pay $5 for every sick call, a significant expense for a prisoner making prison wages or receiving minimal support, if any, from a family member. One prisoner who has had chronic headaches and respiratory problems reported never making a sick call in his two and a half years at SCI-Fayette because, “they charge too much for sick call and don’t do nothing for symptoms.”81 Those who do attempt to get care are often dismissed: “I went to medical for an emergency sick call one morning because my vision was so blurry that I could barely see and was harassed and deterred from seeking treatment by the RN,” reports one prisoner.82 The cases of cancer mentioned above in which prisoners were denied evaluation until the cancer was life-threatening are further evidence of the dangerous level of neglect exhibited by medical staff. No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette 13 One of the prisoners with ulcerative colitis was prescribed a regimen of steroids by a doctor outside of the prison, which was repeatedly administered incorrectly by the prison: “The medical department failed to adhere to their instructions and abruptly stopped the medication. This caused a flare up of my ulcerative colitis and I had severe abdominal pains and rectal bleeding again.”83 “Shockingly, nursing staff, and almost with every inmate who is admitted into the infirmary, accuse those inmates of ‘faking it.’” Many prisoners report that medical staff display hostility toward those seeking care. One prisoner wrote: “Shockingly, nursing staff, and almost with every inmate who is admitted into the infirmary, accuse those inmates of ‘faking it.’ I’ve seen guys literally vomiting, and nursing staff will say, ‘oh he’s just faking it.’ My jaw has dropped open from shock so many times.”84 Another prisoner wrote: I had some sort of seizure one day and I went to medical, when the nurse came in I can see that the nurse was highly upset with my presence and slammed my file down and began to punch the desk. He then began to tell me “Man up” and to tell me I had AIDS from getting fucked in my ass and making fun of me. I don’t have AIDS, he just wanted to make fun of me instead of treating me.85 Darin Hauman wrote to us about the late Greg Yarbonet, who died of brain cancer in 201186: In his last few weeks of life certain nursing staff deliberately induced dehydration by simply refusing to assist him in drinking water. No hydration by way of intravenously either.With healthy humans it takes a short time being dehydrated for organs to be begin shutting down. Regarding Greg, I would have to sneak into his ward area, I would have to dip my finger into water to moisten his lips as they were “glued” shut, then would have to drip a few drops of water onto his tongue just so he could use a straw to get a few sips of water. Of all things I was yelled at numerous times for doing this.This pisses me off each time I think of this.To deny a man a drink of water speaks volumes as to the ideology of this particular nursing staff.87 Paul Kimble related an exchange with medical staff that underlines the apparent lack of empathy and professional ethics at the prison: “Doctor told me, during last physical, when asked if the lack of treatment meant that I would be left to die, ‘You said it, not me.’”88 The only recourse for prisoners in such situations is to engage in a protracted grievance process that is designed to reject prisoner complaints and limit PADOC liability for unlawful conduct. All of the prisoners in the survey who reported filing grievances about medical care or environmental conditions at the prison had their grievances dismissed. This is consistent with official PADOC statistics demonstrating that in recent years more than 98% of prisoner grievances are denied on one basis or another.89 14 Abolitionist Law Center | Human Rights Coalition Background on SCI-Fayette SCI Fayette was designed to replace the maximum security state prison in Pittsburgh.90 At the time, however, Pennsylvania’s prison population was growing rapidly under increasingly harsh sentencing for nonviolent offenders, and SCI Pittsburgh was re-opened shortly after the new prison began operation.91 State Representative Bill DeWeese, later convicted on corruption charges, pushed hard to bring the new prison to Fayette County, hailing it as an important form of economic development for the poorest county in the state.92 In early 2000, MCC sold 237 acres of its 1,357-acre property to the Commonwealth of Pennsylvania, for the purpose of building SCI Fayette.93 According to the construction manager for the project, the decision to place the prison on top of a mined-out parcel of land with a legacy of coal waste dumping, and an operational coal ash dump nearby was “based on cost, scheduling and availability.”94 The degree to which coal waste from the earlier Labelle Processing Plant was dumped on this land is unclear. What is clear is that the prison was built on top of a former coal mine, and it is directly adjacent to MCC’s coal ash dump.95 Indeed, the western slope supporting Slurry Pond 3 looms over the prison, which is significantly lower in elevation, presenting a potential disaster should the dump lose structural integrity. The prison was built between 2001 and 2003, and at 110 percent of its capacity, currently holds 2,021 prisoners.96 The total cost to build was around $119,000,000.97 Prisoners report that parts of the prison are slowly sinking into the ground, likely due to subsidence caused by earlier mining at the site.98 As part of the design, it was decided to use boilers that burn coal waste to provide steam and hot water to the prison.99 The construction and management of the steam system was contracted out to Fayette Thermal, with the boilers being placed about a quarter mile from the prison.100 The resulting coal ash from the Fayette Thermal plant is one of several sources that are permitted for disposal on MCC’s remaining acreage.101 The related steam and water systems for the prison have broken down several times, according to prisoners, with periods without running water lasting up to a week.102 In 2010, the pipes for the entire steam and hot water system were dug up and replaced, under a $7,025,000 contract.103 In a testimonial posted to the contractor’s website, the Facility Maintenance Manager for SCI Fayette expressed gratitude for “several emergency repairs,” which were needed “to keep the poor system we have operating over the last 2+ years.”104 According to the contractor’s Technical Proposal, these emergency repairs were on a continuous basis from 2004 to 2010.105 The new pipes were hung off the sides of the prison buildings, perhaps to avoid corrosion of the pipes caused by coal waste in the surrounding soil.106 No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette 15 Signs of Pollution at SCI-Fayette black clouds of debris blowing off the dump site; black dust collecting in the prison yard, on window sills, and on freshly fallen snow; and black and gray dust building up around the vents inside prison cells. A majority of prisoners in the survey reported visible signs of pollution in and around the prison. Almost all of their reports are the same: black clouds of debris blowing off the dump site; black dust collecting in the prison yard, on window sills, and on freshly fallen snow; and black and gray dust building up around the vents inside prison cells.These reports match descriptions provided by LaBelle residents of pollution blowing off the site and blanketing the town with black dust. For instance, prisoner Barry Alton reports: From our yard we can see the dump trucks going up the road to dump the Fly Ash — Loads not covered — causing dust clouds even prior to dumping. Over the years we’d be outside and dust clouds would blow back towards the prison — couple times covered entire yards.This was not just from dumping but from moving piles of ash around area to level it out.107 Joseph Frankenberry writes: It seemed always that visible clouds of dust in the outdoor air existed on a daily basis and tables in the yards always had a blanket of dust as inmates would carry tissue to wipe the tables daily to play cards…108 Another prisoner writes: I went to the eye doctor on Tuesday… The entire windshield of the van was covered in Coal Ash.The officers had to stop the van and wipe the windshield off with paper towels because the Coal Ash would not come off with the windshield fluid and windshield wiper blades.109 “There is black dust all over the walls on F, H. G. and E Block. There is always a chemical odor in the air. It is real bad by the staff parking lot next to the yard,” writes one prisoner.110 Another adds that there is “black dust in our cells.You clean it and about an hour later the dust is back. The black dust collects on cloth that inmates cover their vents with[.]”111 Another prisoner reports that the “ventilation system is always caked with thick dust.”112 Prisoners are nearly unanimous in reporting signs of water pollution. They report that the water often smells and tastes of sulfur. Others report that the water is frequently discolored. Michael McCole writes “I put a rag over showerhead and white rag turns to brown…”113 Marcus Santos explains that the water gave him heartburn every time he drank it. As a consequence, he refrained from drinking water as much as possible. When Marcus arrived at SCI Smithfield he took a tiny sip of water. He waited 5–10 minutes for the onset of heartburn, and when it did not occur, he tried some more 16 Abolitionist Law Center | Human Rights Coalition water. When the heartburn failed to materialize, Marcus said he drank and drank and drank. Marcus had been depriving himself of water at SCI Fayette due to the heartburn, and he had lost a considerable amount of weight as well. Marcus said, “When I first got here [to SCI Smithfield] I was thirsty.”114 Several prisoners write about instances when the water was shut off for days at a time, with the most recently reported instance occurring in February 2014.115 One prisoner reports: The plumbing or water system here is the worse.The drains back up because of the way they were installed.The pipes trap air and back up… Until yesterday we didn’t have no hot water. It was off for almost a week, and the usually cloudy water was brown. It was so bad that it literally made my t-shirt brown while I washed it out.116 Christian Martinson reports: Not only do I have experience with brown, stinking water, but also times where the prisoners had to go on lockdown without working water. Bottled water had to be shipped in and the toilets flushed manually.Then they relocated the water pipes to an elevated level against the walls of the blocks…117 Another prisoner writes, “2006 to 2012 [underground] pipes kept breaking until above pipes were hung on side of blocks and building.”118 These reports are verified by looking at publicly available contracts for repairs and replacement of the plumbing at SCI Fayette.119 At this time, our investigation has not been able to confirm that the water at SCI Fayette is a source of coal waste or coal ash contamination in the prison. The prison receives water from a local water authority, which has frequently been cited for water quality violations in recent years, likely related to wastes from natural gas drilling in the area.120 However, it appears that the water intake for the area is upriver from SCI Fayette and the nearby coal ash dump, and is unlikely to be directly affected by pollution at these sites.121 It is possible that subsidence, poor construction, and high levels of coal waste in the area contributed to corrosion and breaking of the plumbing system at SCI Fayette, and may have opened the pipes up to leachate from rain and snowmelt draining through the surrounding coal waste and soil.122 This could explain why the plumbing system at the prison was in need of constant repair and was ultimately pulled out of the ground and elevated onto the walls of the buildings. Several prisoners also report a connection between rain and snowmelt, and times when the water is particularly discolored and bad smelling. No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette 17 LEGAL FRAMEWORK CRUEL AND UNUSUAL PUNISHMENT UNDER THE U.S. CONSTITUTION Conditions of Confinement While “the Constitution does not mandate comfortable prisons,”123 and conditions may be “restrictive and even harsh,”124 conditions that are inhumane are impermissible under the Eighth Amendment’s prohibition against cruel and unusual punishment.125 When the government deprives an individual of his or her liberty via incarceration it possesses a corresponding duty to provide for that person’s basic human needs, including food, clothing, shelter, medical care, and safety.126 However, a prisoner claiming unconstitutional conditions of confinement must prove both an objective and a subjective element, before a court will enforce or protect these rights.127 The objective element requires that an injury be “sufficiently serious,”128 resulting in the deprivation of a single, identifiable human need such as health, safety, food, warmth or exercise.129 A condition that does not meet the objective requirement by itself may be considered in combination with other conditions if these produce a “mutually reinforcing effect” that causes deprivation of a single, identifiable human need.130 Being exposed to a substantial risk of harm may state a claim under the Constitution as well, as a prisoner does not “need to await a tragic event” in order to be granted relief from a court, as “the Eighth Amendment protects against future harm.”131 The subjective element, derived from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment,”132 requires that a plaintiff demonstrate that a defendant possessed a “sufficiently culpable state of mind.”133 In cases involving prison conditions the culpable state of mind is one of deliberate indifference to prisoner health or safety,134 as occurs when a prison official knows that prisoners face “a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”135 Under this standard, an injury to a prisoner’s health caused by exposure to environmentally toxic living conditions such as those present at SCI Fayette meets the objective requirement of an Eighth Amendment claim, provided that the harm is “sufficiently serious.” Chronic skin disorders, problems with liver and kidney functioning, asthma attacks and respiratory ailments, and cancer are all sufficiently serious. If the coal refuse and ash pollution surrounding SCI Fayette can be proven to a reasonable scientific certainty to be the cause of an individual’s ill health, the objective requirement of an Eighth Amendment claim for exposure to environ mentally toxic living conditions will be met. If a body of evidence can be developed showing that any prisoner at SCI Fayette is being exposed to a substantial risk of serious harm based on the possibility that he will develop a “sufficiently serious” health problem, the state will be constitutionally 18 Abolitionist Law Center | Human Rights Coalition prohibited from confining prisoners at SCI Fayette. A class action suit on this scale requires substantial scientific expertise, including studies by epidemiologists and environmental toxicologists. Based on the evidence gathered to date, and the known harmful health effects of coal ash and other coal refuse, there is a sound basis for seeking financial and scientific resources that will enable prisoners and their advocates to develop evidence of the potential and actual harms imposed on them. The subjective element of an Eighth Amendment claim requires proof that officials had knowledge of the risks to prisoners’ health at SCI Fayette, and yet failed to take reasonable measures to eliminate those risks. PADOC officials’ awareness that SCI Fayette was built on and around a toxic dump would demonstrate actual knowledge of a risk of adverse health consequences from imprisoning people at the site. Aggregated medical records may also show patterns of health problems consistent with exposure to environmentally toxic living conditions, establishing that PADOC officials knew or should have known that prisoners were being harmed by these toxins. Additionally, prisoner grievances and reports such as this one will also create a record of actual knowledge of the harms imposed upon prisoners at SCI Fayette. At this stage it is uncertain what, if any, measures have been taken by PADOC officials to mitigate the existing harms at SCI Fayette, but it does not appear that any measures have been taken to identify or address the problem. If the harms are of such a magnitude that prisoners cannot be held at SCI Fayette without imposing a substantial risk of serious harm, any measure short of closing the prison will be unreasonable. Thus, if prison officials fail to take any actions to remedy the harms imposed on a prisoner or a group of prisoners, or fail to take those actions that are necessary to end them, such as closing the prison, the subjective element of an Eighth Amendment claim will be met. Medical Care The U.S. Supreme Court has held that the Eighth Amendment is based on “broad and idealistic concepts of dignity, civilized standards, humanity, and decency,”136 that consequently forbids punishments that “involve the unnecessary and wanton infliction of pain.”137 These premises “establish the government’s obligation to provide medical care for those whom it is punishing by incarceration,” since a prisoner “must rely on prison authorities to treat his medical needs,” and failure to do so “may actually produce physical torture or a lingering death.”138 In order to prevail on a claim of unconstitutional medical or mental health care, plaintiffs must prove that prison officials acted with “[d]eliberate indifference to serious medical needs of prisoners,” causing “unnecessary and wanton infliction of pain.”139 The Court recognized that medical and non-medical staff may be liable under this cause of action, and that deliberate indifference may result from denial or delay of a prisoner’s medical care, or intentional interference with prescribed treatment.140 Deliberate indifference requires a higher standard of subjective intent than negligence, as “an inadvertent failure to provide adequate medical care cannot No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette 19 be said to constitute an unnecessary and wanton infliction of pain[.]”141 The Third Circuit Court of Appeals has elaborated on this standard by observing that deliberate indifference is found when a doctor intentionally inflicts pain on a prisoner, when reasonable requests for medical treatment are denied causing “undue suffering or the threat of tangible residual injury,” and “where knowledge of the need for medical care is accompanied by the intentional refusal to provide that care.”142 Those prisoners suffering health problems as a consequence of their exposure to environmentally toxic living conditions are entitled to medical care. If prison officials act with deliberate indifference to a prisoner’s serious medical need at SCI Fayette by denying or delaying necessary treatment, or by intentionally inflicting harm, those officials are liable under the Eighth Amendment. If it can be proven that medical staff and prison officials are aware that a prisoner’s illness is caused or exacerbated by his exposure to environmentally toxic conditions at SCI Fayette, failure to transfer the prisoner to another prison for medical reasons would constitute either denial of necessary treatment or intentional infliction of pain, or both. CONCLUSIONS AND NEXT STEPS 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. However, we believe that the patterns that emerged in our survey are alarming and suggest a causal relationship between coal waste and prisoner health problems. The prevalence of respiratory problems is particularly telling because they are the most common symptoms associated with exposure to airborne toxins.There is also a consistent pattern of prisoners developing symptoms that they never before experienced shortly after entering SCI-Fayette, another telltale sign of exposure environmental toxins. At this stage, it is clear that the investigation into how prisoner’s health is being harmed by exposure to toxic Prisoners retain constitutional and human coal refuse must continue and expand. Prisoners retain rights to clean air and clean water. constitutional and human rights to clean air and clean water. We will conclude with a concise list of how individuals and organizations representing different constituencies can come together to address the urgent health crisis at SCI Fayette and the town of LaBelle. Prisoners, their family members and supporters: Prisoners at SCI Fayette should continue to provide detailed information regarding health symptoms experienced at SCI Fayette, efforts to obtain medical treatment, and evidence of pollution at the prison. For those no longer at SCI Fayette, please provide information of ongoing health problems that arose while at SCI Fayette, as well as how your health may have improved since leaving the prison. Family members and supporters of prisoners can help by contacting the Human Rights Coalition to become involved in advocacy and organizing efforts in support of the health and human rights of prisoners at SCI Fayette and throughout the PADOC. 20 Abolitionist Law Center | Human Rights Coalition LaBelle residents, prison staff, and surrounding communities: This report focuses primarily on the health conditions and treatment of prisoners at SCI Fayette, but the residents of LaBelle and prison staff are also exposed to pollutants from this site, and are reporting high rates of respiratory problems and cancer. Those who live and work in the area around the dump have a right to a clean environment, and have a common cause with those who are locked up at SCI Fayette. We know from our investigation that residents of LaBelle are fighting for the dump to be closed and for compensation for harms done to them. We would like to work in solidarity with residents and form strategies for protecting the health, safety, and human rights of all people living and working near this dump. Environmental Organizations: Several environmental organizations have been supporting residents of LaBelle and advocating for tighter regulations or even closure of the site. We call on these and other groups to include prisoners in their understanding of who is impacted by this dump and to see the strategic importance of linking the grievances of everyone impacted by the site. More broadly we call on environmental groups to see prisoners everywhere as Environmental Justice (EJ) Communities. EJ communities are low-income communities and communities of color which are more likely to be targeted by polluting industries because of institutional forms of oppression and a lack of political and economic power. The situation in LaBelle and SCI Fayette also highlights the need for more forceful federal regulation of coal ash, which has been a major focus of environmental NGOs for years. The inhumane situation of people held captive in close proximity to this dump provides a unique opportunity to prove a direct relationship between exposure to coal ash and adverse health impacts. The results of the kind of epidemiological studies we hope to undertake could bolster the demands of these national groups for coal ash to be strictly regulated by the EPA. Medical Institutions and Organizations: Medical professionals are needed to advocate for and carry out epidemiological studies of the prisoner population at SCI Fayette and the town of LaBelle. Professional organizations should issue statements of support and assist in mobilizing professional and financial resources for investigative, advocacy, and legal efforts. Legal Community: Lawyers, law clinics, law students, paralegals, and jailhouse lawyers should join with the ALC to assist in investigation and potential legal action in support of prisoners at SCI Fayette. Additionally, those prisoners in urgent need of medical care, especially diagnostic treatment and surgery to assess pre-cancerous and cancerous growths, need legal support. A lawyers’ monitoring committee should be established in order to organize a network of attorneys to do pro bono work on individual cases that require immediate attention. Principled and Strategic Cooperation: All of the above constituencies must work together in an integrated way that prioritizes the health and the rights of prisoners, who are the most impacted and the most vulnerable. No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette 21 NOTES 1 2 3 4 5 6 7 8 22 Letter from prisoner (Feb. 5, 2014) (on file). Citizens Coal Council v. Matt Canestrale Contracting, Inc. [CCC v. MCC], Complaint ¶ 1, Civil Action No. 13-896 (2013). Response to Public Comments re: MCC Operating Permit SOOP-26-00057, Bureau of Air Quality, PA DEP to Abolitionist Law Center (Jun. 11, 2014) (on file). David Templeton, A Past, But No Future: Suspension Bridge Coming Down, PITTSBURGH POST-GAZETTE, February 29, 2014, at http://www.post-gazette.com/local/washington/2004/02/29/A-past-but-no-future-Suspension-bridge-comingdown/stories/200402290145. Id. Dennis Noll, FGD as an Alkaline Amendment for Coal Waste, in PROCEEDINGS OF FLUE GAS DESULFURIZATION (FGD) BPRODUCTS AT COAL MINES AND RESPONSES TO THE NATIONAL ACADEMY OF SCIENCES FINAL REPORT “MANAGING COAL COMBUSTION RESIDUES IN MINES”: A TECHNICAL INTERACTIVE FORUM 33, 33 (Kimery C.Vories & Anna K. Harrington eds., 2006). Fayette County, Pennsylvania, Deed Book 1693: 222; Estate of Interstate Thermal Energy Conversion Corporation & Matt Canestrale Contracting, Inc., 3 May 1996; Recorder of Deeds, Uniontown, PA; Fayette County, Pennsylvania, Deed Book 1733: 227; Estate of Labelle Processing Company & Matt Canestrale Contracting, Inc., 12 July 1996; Recorder of Deeds, Uniontown, PA. Fayette County, Pennsylvania, Deed Book 1816: 91; Contractual Consent of Landowner, Matt Canestrale Contracting, Inc., 1 October 1996; Recorder of Deeds, Uniontown, PA. Abolitionist Law Center | Human Rights Coalition 9 Fayette County, Pennsylvania, Deed Book 3116: 1637; Contractual Consent of Landowner for a General Permit, Matt Canestrale Contracting, Inc., 3 March 2010; Recorder of Deeds, Uniontown, PA. [Labelle Refuse Site set at 506.7 acres]. No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette 23 10 Fayette County, Pennsylvania, Deed Book 2476: 314; Matt Canestrale Contracting, Inc. & Commonwealth of Pennsylvania, Department of General Services, 9 February 2000; Recorder of Deeds, Uniontown, PA. [Transfer of 237.82 acres]. 11 12 13 14 Supra note 6 at 33-35. Id. Id. BARBARA GOTTLIEB ET AL., COAL ASH: THE TOXIC THREAT TO OUR HEALTH AND ENVIRONMENT: A REPORT FROM PHYSICIANS FOR SOCIAL RESPONSIBILITY AND EARTHJUSTICE 9 (2010). Center for Coalfield Justice, Comments Regarding CMAP #26970702 and NPDES #PA-0215112 for Matt Canestrale Contracting, Inc. Labelle Site, Luzerne Township, Fayette County, ¶¶ 14-45 (Apr. 19, 2013). 25 Pa. Code § 123.2; 25 Pa. Code § 123.1(a)(9) Interviews with residents and prisoners. Supra note 15 at ¶¶ 18-23. Citizens Coal Council, Notice of Violations and Notice of Intent to Sue Matt Canestrale Contracting, Inc., 5-12 (Mar. 13, 2013); EVAN HANSEN ET AL., WATER POLLUTION AT LABELLE, FAYETTE COUNTY, PENNSYLVANIA (2014). EVAN HANSEN ET AL., WATER POLLUTION AT LABELLE, FAYETTE COUNTY, PENNSYLVANIA (2014). Id. Id. at 19-21. ALAN H. LOCKWOOD & LISA EVANS, ASH IN LUNGS: HOW BREATHING COAL ASH IS HAZARDOUS TO YOUR HEALTH 14 (2014). Citizens Coal Council, Notice of Violations and Notice of Intent to Sue Matt Canestrale Contracting, Inc., 13 (Mar. 13, 2013). David Templeton & Don Hopey, Large Loads in LaBelle, PITTSBURGH POST-GAZETTE, December 16, 2010, at http://www.postgazette.com/news/health/2010/12/16/Large-loads-in-La-Belle/stories/201012160387. David Templeton & Don Hopey, “Clusters” of Death, PITTSBURGH POST-GAZETTE, December 13, 2010, at http://www.postgazette.com/news/health/2010/12/13/Clusters-of-death/stories/201012130261. Supra note 25. Notice of Operating Permit Disposition for SOOP-26-00057, Bureau of Air Quality, PA DEP to Abolitionist Law Center (Jul. 14, 2014) (on file). 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 Abolitionist Law Center | Human Rights Coalition 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 Don Hopey, FirstEnergy to Ship Little Blue Run Coal Waste to Fayette County, PITTSBURGH POST-GAZETTE, January 25, 2013, at http://www.post-gazette.com/local/west/2013/01/25/FirstEnergy-to-ship-Little-Blue-Run-coal-wastes-to-FayetteCounty/stories/201301250140; Press Release, FirstEnergy Corp., FirstEnergy Announces Plans to Beneficially Use Scrubber Material from Bruce Mansfield Plant in Pennsylvania Mine Reclamation Project (Jan. 22, 2013) (available at: https://www.firstenergycorp.com/content/fecorp/newsroom/news_releases/firstenergy-announces-plans-to-beneficially-usescrubber-materia.html). Id. US Army Corps of Engineers, Pittsburgh District, Public Notice No. 2014-405 (2014), http://www.lrp.usace.army.mil/Portals/72/docs/regulatory/2014%20Public%20Notices/PN%2014-27.pdf. Intent to Issue Plan Approvals and Intent to Issue or Amend Operating Permits under the Air Pollution Control Act, 2600500C: Alpha PA Coal Terminal, LLC, 44 Pa.B 791, 806 (February 8, 2014); Intent to Issue Plan Approvals and Intent to Issue or Amend Operating Permits under the Air Pollution Control Act, 26-00500C, 44 Pa.B 2519, 2526 (April 26, 2014). Timothy Puko, Alpha Natural Resources to Pay Record $227.5M in Water Pollution Settlement, TRIBLIVE, March 6, 2014, at http://triblive.com/business/headlines/5710782-74/alpha-coal-federal. BARBARA GOTTLIEB ET AL., COAL ASH: THE TOXIC THREAT TO OUR HEALTH AND ENVIRONMENT: A REPORT FROM PHYSICIANS FOR SOCIAL RESPONSIBILITY AND EARTHJUSTICE 8 (2010); Physicians for Social Responsibility, 840 Health Professionals Agree: Coal Ash is Hazardous to Your Health, Apr. 26, 2012, http://www.psr.org/news-events/press-releases/840health-professionals-agree-coal-ash-hazardous-your-health.html. BARBARA GOTTLIEB ET AL., COAL ASH: THE TOXIC THREAT TO OUR HEALTH AND ENVIRONMENT: A REPORT FROM PHYSICIANS FOR SOCIAL RESPONSIBILITY AND EARTHJUSTICE 1-5 (2010). Id. at vii. Coal Combustion Residuals — Proposed Rule, 75 Fed. Reg. 35,128 (Proposed Jun. 21, 2010). Pennsylvania Department of Environmental Protection, Coal Ash Beneficial Use, http://www.depweb.state.pa.us/portal/server.pt/community/bureau_of_mining_programs/20865/coal_ash_beneficial_use/115 0024#Regulation%20and%20Policy (last visited Jul. 31, 2014). CLEAN AIR TASK FORCE, IMPACTS ON WATER QUALITY FROM PLACEMENT OF COAL COMBUSTION WASTE IN PENNSYLVANIA COAL MINES 39 (2007). ALAN H. LOCKWOOD & LISA EVANS, ASH IN LUNGS: HOW BREATHING COAL ASH IS HAZARDOUS TO YOUR HEALTH (2014). BARBARA GOTTLIEB ET AL., COAL ASH: THE TOXIC THREAT TO OUR HEALTH AND ENVIRONMENT: A REPORT FROM PHYSICIANS FOR SOCIAL RESPONSIBILITY AND EARTHJUSTICE 8 (2010). Letter from Marcus Santos (Apr. 15, 2013) (on file). Letter from Joshua Turner (Feb. 28, 2014) (on file). See supra, note 2. Letter from prisoner (Oct. 9, 2013) (on file). Letter from Marcus Santos (Apr.15, 2013) (on file). Interview with Marcus Santos (Mar. 3, 2014). Letter from prisoner (Jul. 2, 2014) (on file). Letter from prisoner (Nov. 20, 2013) (on file). Letter from Lance Rucker (Nov. 5, 2013) (on file). Letter from prisoner (Nov. 22, 2013) (on file). Letter from Michael Dean (Dec. 6, 2013) (on file). Letter from Anthony Willingham (Apr. 17, 2014) (on file). Letter from Marcus Santos (Oct. 27, 2013) (on file). Letter from Roy Davis (Jan. 23, 2014) (on file). Interview with Marcus Santos (Mar. 3, 2014). Letter from prisoner (Oct. 22, 2013) (on file). Letter from prisoner (Jun. 27, 2014) (on file). Letter from David Ladlee (Jun. 03, 2014) (on file); Letter from prisoner (Jun. 18, 2014) (on file). Letter from Michael McCole (Feb. 4, 2014) (on file). Letter from Roy Davis (Jan. 23, 2014) (on file). Ananthakrishnan, A. N., McGinley, E. L., Binion, D. G. and Saeian, K. (2011), Ambient air pollution correlates with hospitalizations for inflammatory bowel disease: An ecological analysis. INFLAMM BOWEL DIS, 17: 1138-1145. doi: 10.1002/ibd.21455. Letter from prisoner (Nov. 26, 2013) (on file). PADOC, INMATE DEATHS REGISTER (2010-2014) (on file). PADOC, INMATE DEATHS REGISTER (2010-2014) (on file). Letter from prisoner (Jul. 23, 2013) (on file). No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette 25 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 26 Letters from prisoners (Apr. and Jun. 2013) (on file). PADOC, INMATE DEATHS REGISTER (2012) (on file). Letter from Paul Kimble (Mar. 12, 2014) (on file). Letter from Anthony Willingham (Apr. 17, 2014) (on file). David Ladlee, APPEAL TO FACILITY MANAGER OF GRIEVANCE #429131 (Oct. 7, 2012) (on file). Interview. Letter from prisoner (Oct. 1, 2013) (on file). Letter from Michael Dean (Oct. 15, 2013) (on file). Letter from Paul Kimble (May 16, 2014) (on file); Letter from prisoner (Dec. 13, 2013) (on file). Letter from prisoner (Jul. 2, 2014) (on file). Letter from prisoner (Nov. 26, 2013) (on file). Letter from prisoner (Jun. 13, 2014) (on file). Letter from prisoner (Jul. 15, 2014) (on file). CLEAR COALITION & SEIU HEALTHCARE, DEPARTMENT OF CORRECTIONS HEALTHCARE: PUBLIC HEALTH AND PUBLIC SAFETY IN THE COMMONWEALTH’S PRISONS (2012). Letter from prisoner (Nov. 10, 2013) (on file). Letter from prisoner (Dec. 20, 2013) (on file). Letter from prisoner (Oct. 1, 2013) (on file). Letter from prisoner (Apr. 10, 2014) (on file). Letter from prisoner (Jun. 13, 2014) (on file). PADOC, INMATE DEATHS REGISTER (2011) (on file). Letter from Darin Hauman (Apr. 15, 2014) (on file). Letter from Paul Kimble (May 16, 2014) (on file). PADOC, GRIEVANCE STATISTICS FROM 2008-2011 (obtained via Right-to-Know request, and indicating that at least 98% of grievances are not resolved in favor of prisoners) (on file). See Cindi Lash, Fayette Residents Hope Prison Holds Promise Of Better Future, PITTSBURGH POST-GAZETTE, July 31, 2003, at http://old.post-gazette.com/localnews/20030731prisonr5.asp PADOC, Pennsylvania State Prison Officials To Reopen SCI Pittsburgh, January 3, 2007. Karen Langley & Laura Olson, DeWeese Guilty of Five Felonies, PITTSBURGH POST-GAZETTE, February 7, 2012, at http://www.post-gazette.com/local/washington/2012/02/07/DeWeese-guilty-of-five-felonies/stories/201202070279; DeWeese: Fayette Co. Has Prison Locked Up, OBSERVER-REPORTER, August 26, 1999, at A1. Fayette County, Pennsylvania, Deed Book 2476: 314; Matt Canestrale Contracting, Inc. & Commonwealth of Pennsylvania, Department of General Services, 9 February 2000; Recorder of Deeds, Uniontown, PA. PJ Dick, Project: State Correctional Institute — Fayette, http://www.pjdick.com/jobs.nsf/%28web%29/373EF2215B65CD76852569360051D450/$File/SCI+Fayette+Project+Sheet. pdf (last visited July 30, 2014). See Pennsylvania Mine Map Atlas, http://www.minemaps.psu.edu (last visited July 30, 2014). PADOC, MONTHLY POPULATION REPORT — JUNE 2014. Supra note 85. Letter from prisoner (Jun. 11, 2014) (on file). Steve Spaulding, New prison receives high-efficiency boiler backup, CONTRACTOR, Aug. 2003, at 7. Id. Response to Public Comments re: MCC Operating Permit SOOP-26-00057, Bureau of Air Quality, PA DEP to Abolitionist Law Center (Jun. 11, 2014) (on file). Letter from prisoner (Oct. 2, 2013) (on file). Wayne Crouse, Inc., SCI Fayette — Replace Heating/Cooling Distribution Center, http://www.waynecrouse.com/experience2/correctional-facilities (last visited July 30, 2014). Wayne Crouse, Inc., Testimonials, http://www.waynecrouse.com/testimonials (last visited July 30, 2014). Wayne Crouse, Inc., TECHNICAL PROPOSAL FOR: SCI FAYETTE — REPLACE HEATING/COOLING DISTRIBUTION SYSTEM, Project No. DGS 570-30.2 — HVAC Construction (May 4, 2010) (“Fred’s services will be complimented by his past experience at SCI Fayette where he had estimated and project managed the SCI-Fayette Emergency Replacement of Deteriorating Underground Hot Water Piping in 2004, and secured a Maintenance Agreement to perform emergency repairs on the High Temperature Hot Water System with the DGS to this date.”). Id. (“WCI will be replacing the existing underground High Temperature Hot Water piping system with a new above ground High Temperature Hot Water piping system that will be routed on rooftops and on steel stanchion supports.”). Abolitionist Law Center | Human Rights Coalition 107 108 109 110 111 112 113 114 115 116 117 118 119 120 Letter from Barry Alton (Jun. 4, 2014) (on file). Letter from Joseph Frankenberry (Jun. 18, 2014) (on file). Letter from prisoner (Oct. 2, 2013) (on file). Letter from prisoner (Sep. 28, 2013) (on file). Letter from prisoner (Oct. 1, 2013) (on file). Letter from prisoner (Nov. 21, 2013) (on file). Letter from Michael McCole (May 19, 2014) (on file). Interview with Marcus Santos (Mar. 3, 2014). Letter from prisoner (Feb. 5, 2014) (on file). Letter from prisoner (Oct. 2, 2013) (on file). Letter from Christian Martinson (Jul. 1, 2014) (on file). Letter from prisoner (Jun. 9, 2014) (on file). Supra notes 103, 104, 105. Pennsylvania Department of Environmental Protection. Notices of Violation. Issued to Tri-County Water Authority, Jan. 31, 2014, Nov. 8, 2013, Sept 28, 2013, Sept 11, 2013, Nov. 14, 2014, May 5, 2009, Feb. 5, 2009, Nov. 21, 2008, Oct. 30, 2008, Aug. 12, 2008, Mar. 17, 2008, 121 Map of Tri-County Water Authority Facilities. Pennsylvania Department of Environmental Protection files 122 See, e.g., Angela Fiandaca, Corrosion at Root of Gannett Pipe Break, THE MAINE CAMPUS, March 31, 2003, at http://mainecampus.com/2003/03/31/corrosion-at-root-of-gannett-pipe-break (“The water pipe was said to be so corroded because where the pipes lay underground in front of Gannett Hall is where a landfill was located. Within this landfill, workers found trash such as cans, bottles and newspapers, surrounded by coal ash.”). 123 Rhodes v. Chapman, 452 U.S. 337, 349 (1981), 124 Id. at 347. 125 Farmer v. Brennan, 511 U.S. 825, 832 (1994). 126 Helling v. McKinney, 509 U.S. 25, 31-32 (1993). 127 Farmer, 511 U.S. at 834. 128 Wilson v. Seiter, 501 U.S. 294, 298 (1991). 129 Id. at 304. 130 Id. 131 Helling, 509 U.S. at 33. 132 Wilson, 501 U.S. at 297. 133 Id. 134 Farmer, 511 U.S. at 834. 135 Id. at 847. 136 Estelle v. Gamble, 429 U.S. 97, 102 (1976) (internal citation omitted). 137 Id. at 103 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). 138 Estelle, 429 U.S. at 103 (internal quotation marks omitted). 139 Id, at 104 (internal quotation marks omitted). 140 Id. at 104-05. 141 Id. at 105. 142 Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (internal citations and punctuation marks omitted). No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette 27 Human Rights Coalition P.O. Box 8654 Pittsburgh, PA 15221 5129 Penn Avenue Pittsburgh, PA 15224 firstname.lastname@example.org 412-654-9070 email@example.com 412-361-3022 abolitionistlawcenter.org www.hrcoalition.org