MDEQ director questions why EPA seeking 53-year-old data in civil rights probe

MDEQ Executive Director Christopher Wells
MDEQ Executive Director Christopher Wells(State of Mississippi)
Published: Feb. 1, 2023 at 9:27 AM CST
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JACKSON, Miss. (WLBT) - The head of a state agency at the center of a federal civil rights investigation says EPA is disregarding its own rules in its latest request seeking information.

In particular, Mississippi Department of Environmental Quality Executive Director Chris Wells is asking why EPA’s Office of External Civil Rights Compliance is seeking documentation dating back to January 1, 1970, nearly a year before EPA was established.

“It is apparent that EPA is ignoring its own regulations by extending its investigation to decades-old information that could not possibly be relevant to the complainants’ claims,” he wrote. “This is an abuse of EPA’s discretion.”

MDEQ is one of two state agencies currently under investigation for civil rights violations by the EPA OECRC.

The investigation was launched in October after the National NAACP and others filed a complaint alleging the agencies discriminated against Jackson in doling out federal funds for water and wastewater infrastructure projects.

In a January 23 response to OECRC Acting Director Anhthu Hoang, Wells denies those claims, and also argues that the investigation should be limited to MDEQ’s actions within the last 180 days, per federal statute.

“In this matter, the allegations made against MDEQ are so general it is impossible to know exactly what discriminatory acts are alleged other than MDEQ, in some unspecified way, failed or refused to fund the city of Jackson’s infrastructure needs,” he wrote, reiterating a point made in his previous letter to EPA.

MDEQ awards loans to cities through its Clean Water State Revolving Fund Program. The loans, which are supposed to go to wastewater-related projects, are funded, largely through federal funds, meaning the program is subject to federal anti-discriminatory laws.

However, Wells says that the EPA’s own regulations require a complaint to be filed within 180 days of an alleged civil rights violation, something that he says has not happened in this case.

“The only possible failure or refusal of MDEQ could undertake would be to refuse to award a loan,” he said. “The EPA can and should... dismiss the complaint because MDEQ has not refused to award an SRF loan within 180 days prior to the filing of [it].”

Wells also took issue with the investigator’s information request itself, which included requests for data dating back to January 1, 1970.

“To put this in perspective, EPA is seeking information and documents extending back 19,349 days from the date of EPA’s request,” he said. “This is 335 days before EPA was even established [and] at least 17,889 days before EPA’s Title VI regulations were promulgated.”

MDEQ received the request on December 23, a state holiday. All responses were due on January 23.

Wells tells EPA that it was impossible to fill the request within that timeframe, saying it would require everything from finding and interviewing previous employees to determining if the documents in question still exist.

Among asks, EPA asked for a list of all water or wastewater treatment programs the agency, or its predecessor had been involved in since January 1, 1970, as well as a description of MDEQ’s role in receiving, distributing, or managing federal funds, the dates of operation of the programs, and all sources of funding the programs received since their inception.

Wells is seeking a “reasonable timeline” to respond to the request, rather than “a deadline that is practically impossible for MDEQ to comply with.”

In September, a Title VI civil rights complaint was filed by the National NAACP, the Mississippi State Conference of the NAACP, former Jackson Mayor Harvey Johnson, and others. It alleged the state, for years, had discriminated against Jackson on the basis of race by diverting federal funds for water and sewer to “smaller, white communities with less acute needs.”

“The result is persistently unsafe and unreliable drinking water and massive gaps in access to safe drinking water that are intolerable in any modern society,” the complaint states.

Jackson, Mississippi’s largest city, is nearly 83 percent Black, according to the U.S. Census Bureau, while Blacks make up just 38 percent of the state’s overall population.

Among concerns, NAACP questions the loan forgiveness provisions in the intended use plans for both MDEQ and MSDH, which caps loan forgiveness at $2 million and $500,000 respectively.

“This amount may be significant to a small water authority that needs one or two million dollars to maintain its system, but such a small cap places Jackson at a structural disadvantage, relative to other communities,” the complaint states.

MDEQ, though, says that the loan forgiveness program was designed to help smaller cities that could not afford to participate in the SRF program otherwise.

The agency also argues that 70 percent of those communities helped have majority Black populations.

Wrote Wells, “Black citizens of the city of Jackson were not disparately impacted by not receiving a subsidy because there is no evidence that a greater number of non-minority communities received subsidies to the exclusion of minority communities.”

Officials with the EPA’s Office of External Civil Rights Compliance have not responded to our request for comment.

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