WV Dept. of Environmental Protection Void of Non-Discrimination Policies



JUNE 3, 2020

P.O. Box 445, Kearneysville, WV 25430  info@radwv.org

WV Dept. of Environmental Protection Void of Non-Discrimination Policies

About Boyd Carter Memorial Cemetery

The Boyd Carter Memorial Cemetery (BCMC) is an African American cemetery and possible slave burial ground, located directly next to Rockwool’s construction project in Jefferson County, WV. BCMC was officially established by its 1902 deed. However, through historical research by its supporters, it is believed the Cemetery is much older and may include pre-Civil War slave burials.

WV State and Local Government Agencies Have Neglected to Protect the Cemetery

In 2005, a consultant for WV State Historic Preservation Office (WVSHPO) claimed there were only 53 burials in BCMC. No further research by state or local agencies has been conducted since. Volunteer researchers have uncovered at least 105 confirmed burials to date with an additional 60 burials yet to be confirmed. Archaeological research is needed to determine the exact age of the Cemetery and how many burials exist. The Cemetery has been neglected by local and state government agencies, who have failed to give it adequate attention, recognition, and protection.

Through Freedom of Information Act (FOIA) requests, it has been revealed the WVSHPO stated that the Cemetery is “not in the direct footprint” of Rockwool’s project. However, there are more than a dozen known burials and possibly a number of unknown burials that lie on Rockwool’s property beyond BCMC’s property boundaries. These graves are in critical danger of damage or disinterment as Rockwool has proposed building a fire access road directly through this area (site map and easement agreement for Granny Smith Lane). The Cemetery faces a longer term, but no less critical threat from the sediment ponds located on Rockwool’s property. Pond overflow and erosion issues are serious risks to the Cemetery, as it is located slightly downhill from Rockwool’s ponds. The design and construction of which have been challenged by local groups as inappropriate for local hydrological and karst conditions. 

The Cemetery did not receive proper consideration when the WVDEP accepted and approved incorrect gas pipeline route maps for Mountaineer Gas’ permit in March 2019. The incorrect maps showed BCMC’s boundaries to be significantly smaller than actual size. This led to improper construction setbacks and the destruction of trees on BCMC property during construction in April 2019. Additionally, the pipeline route map didn’t show the African Methodist Episcopal (AME) Church, a property nearby that was eventually bisected by the pipeline apparently without proper easement granting. The AME Church is currently abandoned and there are no living trustees, however, it is still listed as a tax exempt property by Jefferson County and has not been condemned or taken by eminent domain. It remains unclear how (or if) proper permission was obtained for the pipeline to proceed through the AME property. 

Endless pleas by descendants and Cemetery supporters were made to WV State and Local government agencies to pause the construction activities of Rockwool and Mountaineer Gas’ pipeline, but the pleas fell on deaf ears as no agency stepped forward to halt construction and investigate inconsistencies. To this day, no state or local agencies have stepped forward to help the Cemetery. Although a handful of local government officials have shown interest in the Cemetery, this support has not materialized into concrete actions or solutions. 

There are African American cemeteries across America in the same situation as BCMC. These hyperlocal landmarks hold the physical evidence of a community’s history and damage to or removal of these special places changes how a community remembers its history and constructs its identity. Too often, African American cemeteries are treated as inconvenient obstacles to development, and face neglect or damage as a result. Legislative efforts are underway to create a program to identify and database African American cemeteries, the African American Burial Grounds Network Act. It is our duty as moral people to preserve and protect these sacred places. A common thread throughout all cultures is respect for the dead and the protection of final resting grounds. 

RAD observed what appears to be purposeful negligence from WV State and Local agencies to perform routine and prescribed tasks that should have protected BCMC and the AME Church. RAD has also witnessed disparate impacts regarding the lack of policies and procedures to prevent discrimination. This neglect and disparate impacts have harmed the Cemetery, its descendants, visitors, supporters, African American heritage, artifacts, and has destroyed the archaeological integrity of these properties.

WV State and Local Agency Lack Non-discrimination Policies and Procedures; RAD Forced to File Title VI Civil Rights Complaint

On September 23, 2019, Rural Agricultural Defenders (RAD) and two descendants of the BCMC filed a Title VI Civil Rights complaint against the WV Department of Environmental Protection, WV Department of Transportation, WV State Historic Preservation Office, Jefferson County Office of Engineering, Jefferson County Assessor’s Office, and Jefferson County Historic Landmarks Commission. RAD filed the Complaint on behalf of the BCMC’s deceased, their descendants, visitors, and supporters.

RAD filed the Title VI Civil Rights complaint to seek justice for the Cemetery and AME Church. Through RAD’s research, RAD discovered that these WV State and Local agencies missed many opportunities to follow their basic, mandated procedures to protect the Cemetery and even worse, some agencies lacked the means for the public to formally make grievances against these agencies for their discriminative actions and/or inactions. There were only two options available… file a Title VI Civil Rights complaint and/or let the courts hear the case through a lawsuit.

What is a Title VI Civil Rights Complaint?

As explained in a nutshell by Earthjustice:

“Under the Title VI section of the Civil Rights Act of 1964, any agency receiving federal money cannot discriminate on the basis of race, color or national origin. It is a basic accountability system: if a recipient receives federal funds, that recipient cannot use those funds to discriminate. Discrimination need not be intentional. It includes any decision that has an unjustified, unequal impact.”

To add to Earthjustice’s description, the Title VI Civil Rights act protects persons with disabilities against discrimination and provides language assistance for non-English speakers. President Clinton’s 1994 Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations”, further clarified that non-discrimination protections can extend to minority and low income communities. 

USEPA’s Findings Regarding RAD’s Title VI Complaint

Almost immediately upon receiving RAD’s Title VI complaint, the US Environmental Protection Agency (USEPA) discovered the WVDEP has not been compliant regarding non-discmination policies and procedures. The WVDEP lacks specific policies and procedures to protect individuals against discrimination. The USEPA has found the WVDEP has been particularly void in regards to public participation policies and procedures which are crucial to allow citizens to participate in government activities. 

The USEPA and WVDEP are negotiating to reach an Informal Resolution Agreement (IRA) to resolve these outstanding issues. The WVDEP must comply with the terms set in the IRA or risk losing federal funding and their federal directive to administer state permitting programs.

History of the WVDEP

The WVDEP is a relatively new organization. WVDEP and the Office of Miners’ Health Safety and Training were created from the former Division of Energy as a result of West Virginia Senate Bill 217 in 1991. Since 1991, the WVDEP has undergone many needed transitions to become an organization that advocates for the environment and its essential resources such as creating a legal division (1995) and becoming a cabinet-level agency (2001). Apparently, to be not only federally compliant but also be ethical and moral, the WVDEP still has a ways to go to make it into the 21st century.

How will WVDEP non-discrimination policies benefit WV Citizens?

The Civil Rights Act was enacted in 1964. It is now 2020 and the WVDEP, an agency that has accepted federal money for years and has been given federal directives to protect the environment and its vital resources for citizens, still lacks critical policies and procedures. 

Some might say this is an oversight. That it is simply growing pains as this organization was just created in 1991. RAD believes that in this day and age it is egregious, negligent, shameful, and perhaps fraudulent that the WVDEP lacks the means to protect individuals against discrimination. It is shocking that the WVDEP has been allowed to continue to operate without non-discrimination policies and procedures on “the books”. These guidelines are implemented in many other places across America… why not in West Virginia? There are already functioning models in place in other states; the WVDEP should take the initiative to institute and sustain their own practices.

The reasons behind WVDEP’s past neglect of citizens’ rights and public participation are apparent now. They are unable to meaningfully include citizens in their processes as required by federal regulation nor are they able to protect citizens from discrimination because adequate, enforceable rules to protect the rights of citizens do not exist. Non-discrimination policies and procedures benefit all citizens and help to create an inclusive environment where all people, especially the most vulnerable, are given the same consideration as corporations and economic development. These policies implement checklists, guidelines, provide training, etc. to ensure the public involvement processes are fair and available to all persons. These policies provide equitable resolutions to complainants so that the burden and legal costs of settling their grievances in court can be avoided. 

How you can help.

Support the Boyd Carter Memorial Cemetery’s preservation efforts any way you can. Either donate monetarily to their cause or spread awareness through social media, family members, and friends. The trustees have attorneys and are fighting to preserve and keep the Cemetery sacred and whole. Funds are certainly needed for their legal costs.

Examine your local county, city, and state policies and procedures. Make sure they have non-discrimination policies on the books to begin with. It’s shocking that in 2020 it is still quite common for counties and cities to not have these policies. Even if your government is not accepting federal money, they should have inclusive policies to protect all persons against discrimination. If non-discrimination policies are not present, contact your government officials and start the conversion and process to enact these policies.

In conclusion...

West Virginia has the reputation for being a backward and racist state. There are legitimate reasons for this reputation. Little has been done to force West Virginia’s government into the 21st century and to hold our representatives accountable to change policies and legislation. West Virginia has a low population of African Americans at 3.6% compared to 93.5% white population. But a low minority population is no excuse. Inaction on discrimination is equal to consent. West Virginia’s government and its agencies, and local governments and their entities continue a legacy of discrimination if they do not address the lack of policies to prevent discrimination. West Virginia is not welcoming to minorities if there are no laws and policies are there to protect them. West Virginia should not be a refuge for government allowed hate and discrimination.

RAD will be watching when WVDEP’s implements USEPA’s IRA mandated policy adjustments. Vigilance will be needed. A written policy is only effective if it is implemented with proper funding, personnel and most importantly, the genuine desire on the part of the agency to make and sustain changes. RAD is hopeful that with USEPA’s guidance, WVDEP will finally take public participation seriously and work to prevent and investigate discrimination. For too long the WVDEP has avoided, obstructed, and suppressed West Virginians’ rights, participation, and voices in favor of corporate interests. We hope that this is the dawning of a new day in West Virginia, where citizens’ rights to participate in their government free from discrimination is a reality enjoyed by all.