How federal prisoners might become Appalachia’s new ‘black gold’

Illustrations by Iris Gottlieb

“We’ve all heard about the school-to-prison pipeline channeling grossly disproportionate numbers of Black and Latino youth into the system from a young age,” writes Sylvia Ryerson, a journalist based in eastern Kentucky. “What kind of school-to-prison pipeline are we creating for young people here in the mountains?”

Ryerson is referring to a school in Letcher County, Kentucky that has already begun preparing students for prison work in anticipation of the 300 full-time jobs that will become available if a proposed maximum-security prison opens nearby. That’s big news in a county that, according to Al Jazeera America, has lost roughly 84 percent of its coal jobs since 1988. But Ryerson is not the only one with reservations; this particular prison has become mired in tense debate about the race and class dynamics at play, as well as the environmental health impact of the new facility on prisoners and community members alike.

This is only one example in a larger trend. Central Appalachia is increasingly looking toward the prison industry to deliver it from a hopeless economic situation; the Letcher County facility—to which $444 million has already been committed—would be the sixth federal prison built in Central Appalachia in the past 25 years.

The charge is led by Rep. Hal Rogers (R-Ky.) and other government officials who believe prisons are the answer to economic and land use challenges in resource-depleted post-coal areas. Prisons are perfect for land that is often cheap, flat, isolated, and cleared of trees. And cynics might note that they’re probably also perfect for communities accustomed to sacrificing quality of life for a meager paycheck, communities that noxious industries consider the path of least political resistance.

This isn’t exactly a new idea; the strategy has roots going back 30 years, when rural prisons began to represent the bulk of industry growth. Rebecca Thorpe writes in the Washington Post that, “Mass incarceration solved two major problems for a country whose collapsing industrial base left the poor and working classes without jobs… First, outsize numbers of jobless young Black men who lived in impoverished urban districts were designated as criminals, taken off the streets and put in warehouses. Second, prisons became a jobs program for rural America.” Appalachian states “took advantage of the expanding prison sector’s demand for cheap land and untapped labor to bring jobs and capital to economically distressed, rural communities.” Objectionable as this general state of affairs is on its own, it’s further complicated in this specific instance by environmental health concerns that may threaten the very lives of the prisoners. Now, activists are hard at work trying to kill the Letcher County proposal. But it remains to be seen whether they can take advantage of a rare opportunity to bridge divides between the interests of minorities and rural Whites, so long pitted against each other.

Water that’s Cruel and Unusual

To begin, it’s important to know that, according to the Human Rights Defense Center (HRDC), EPA does not currently consider prisoner health and welfare in its environmental justice guidelines, because “EPA uses data that fails to take prisoner populations into account.”

So, in 2015 when the Bureau of Prisons (BOP) released its draft environmental impact statement (EIS) for the prison in Letcher County, it did not evaluate the potential impact of pollution on prisoner health. The EIS proposed two sites, both of which are situated on former mining land and would rely on water sourced from a watershed where active mines are located. An unconventional assortment of environmental and human rights groups, such as Kentuckians for the Commonwealth, the Abolitionist Law Center, HRDC, the Center for Biological Diversity, and Black Lives Matter Kentucky, came together to object to the insufficiency of the EIS and to protest the environmental health impacts that they believe prisoners—who are disproportionately people of color—are likely to suffer.

According to the activists, unemployment is just the beginning of Letcher County’s woes. But while just about everyone can provide troubling anecdotal evidence about smelly, often green- or orange-tinted tap water, hard data is frustratingly inconsistent. The most likely explanation for this is that the water quality itself is inconsistent, fluctuating in response to factors like rainfall and intermittent polluting events. The Environmental Working Group’s (EWG) National Drinking Water Database found that Letcher County’s tap water exceeded health guidelines from 2004-2009 for four contaminants, including trihalomethanes (THMs), dangerous compounds created when chlorine reacts with organic matter. Results like this are rare on a national level; another 2011 study from the same group found that only one out of 200 testing sites exceeded THM legal limits (eastern Kentucky was not the violating site at that time).

However, the city of Whitesburg, located in Letcher County, cites a 2014 water quality study that finds no violations and average THM levels at 58 ppb—well below the 80 ppb maximum. But as the EWG’s 2011 study cautions, research indicates an average annual THM level above just 21 ppb can lead to an increased risk of bladder cancer. In other words, just because the water is legal doesn’t mean it’s healthy.

Acid mine drainage—both from decades-old mining and from current projects like the one that led to a spill on March 18—is a continual concern. But it would be inaccurate to pin all of Letcher County’s water problems on mining. There are several factors at play, including elevated levels of fecal coliform from “generations of people straight-piping their waste into the streams with no septic systems,” explains Tom Sexton of the Sierra Club, “due to a lack of sewer infrastructure.” A Letcher County Water & Sewer District report also notes that fuel leaks have not been uncommon. Childers Oil spilled diesel on three occasions between 2008 and 2011, at times obligating locals to bathe with bottled water for weeks while the issue was resolved. Sexton says that most locals continue to drink bottled water, “but not because they know [about pollution] concretely—just because they have that hunch.”

To get an idea of what conditions to expect in the new facility, it may be helpful to look to prisons in similar situations. It’s much more difficult to maintain an optimistic outlook on Letcher County after reviewing a report from the Abolitionist Law Center entitled “No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette,” which investigates the health of prisoners in a LaBelle, Pennsylvania facility. Though the research doesn’t establish a causal link between environmental conditions and health outcomes, there is reason to be concerned about the frequency of respiratory ailments, unusual growths in the sinus and throat, gastrointestinal distress, thyroid disorders, visual impairment, kidney problems, and cancer. The prison is situated on top of a former coal mine and in close proximity to coal slurry ponds. Several prisoners report that black coal dust often coats surfaces inside the prison and that the tap water, when filtered through a white rag, stains the rag brown. The report urges officials to expand on their study and consider closing the facility due to “cruel and unusual punishment” in violation of the Eighth Amendment. The Abolitionist Law Center is currently at work on a larger health report regarding conditions at Fayette.

The high levels of THMs are a likely culprit for many of the symptoms in the Fayette facility; they have been found to increase cancer risk, lead to reproductive health problems, and cause damage to kidneys and lungs. It’s important to recognize that THMs are not only dangerous when ingested, but are considered even more dangerous when absorbed through the skin or inhaled, for example via shower steam. So even if the prison were willing to provide bottled water to inmates, this would not assuage environmental health concerns.

The BOP released a final EIS in July of 2015 that almost summarily ignored the concerns raised by environmental and human rights groups, and in response HRDC released another, more urgent report co-signed by 14 organizations. In a small but rare victory for the activists, the BOP responded to pressure by releasing a revised final EIS on April 1 and opening another 30-day public comment period, which closed May 2. The new EIS still does not address the activists’ gravest concerns. “There is some new language in there, but it is akin to re-arranging deck chairs on the Titanic,” says Panagioti Tsolkas of HRDC’s Prison Ecology Project. “They don’t acknowledge the alternatives to incarceration, which could reduce or eliminate the need for this facility. They don’t acknowledge health and environmental justice issues… They still don’t assess threats to the Lilley Cornett Woods [a nearby old-growth forest that was curiously ignored in the EIS]. These are the main contentions we raised back in the draft EIS.”

But, Tsolkas says, “I think it’s a huge demonstration of cracks in the façade of this being a done deal… This is not a done deal. It’s just getting interesting. And I think we’re on the right track.”

Environmental Racism

The Letcher County controversy is beginning to galvanize support in a broader fight for environmental justice in prisons. HRDC has also led the charge, with the support of 91 other organizations, on calling for EPA—which is currently considering how to expand on its Plan EJ 2014 for an updated Environmental Justice 2020 Action Agenda Framework—to include prisoners in its guidelines for the first time. HRDC considers this necessary because of an epidemic of poor environmental health conditions in prisons across the country. For example, the water supply in some California and Texas prisons has been found to contain arsenic; valley fever, a sand-borne disease often unleashed as a result of extractive industries, afflicts prisoners in the San Joaquin Valley up to 1,000 times more often than the general population; several prisons near Cañon City, Colorado, have experienced water contamination from a uranium mill; Riker’s Island is located on top of a toxic landfill; and Legionnaire's disease is also not uncommon among incarcerated populations. In fact, according to HRDC, “there is overwhelming evidence that the population of people in prison represents one of the most vulnerable and uniquely-overburdened demographics in our nation.” A reporter at Grist recently found that over half of New Jersey prisons are located on Superfund sites.

The environmental justice movement, started in the late 1970s, aims to protect minority and low-income communities from being targeted for manufacturing or disposal sites for unsafe substances. However, it has not experienced significant victories. A 2007 study showed that race is still the greatest determining factor in the siting of toxic landfills, and income is the second greatest. “Environmental racism,” as this phenomenon is often called, has relevance in the context of prisons because, as HRDC reports, “[B]lacks are incarcerated at a rate five times that of Whites, and Hispanics/Latinos are nearly twice as likely to be incarcerated as [W]hites.” In the case of Letcher County, inmates will be trucked in from East Coast cities with much higher minority populations.

“In the context of environmental justice and how this sort of comes full circle to Black bodies, I’m thinking about Flint right now and the water crisis that’s up there,” says Quentin Savage, a student activist with the Kentucky chapter of Black Lives Matter. He says that Black Lives Matter has been engaging with a deep conversation about environmental racism that’s “sort of intractable with over-policed communities and building things that are going to put Black bodies at risk.”

Opposition to Letcher County’s proposed maximum-security prison is rooted not only in the fight for environmental justice, but also in a rejection of the idea that any new prisons are needed at all. The BOP insists that the prison is needed to alleviate overcrowding in the prison system; activists would prefer to discuss the sentencing policies that have led to overcrowding in the first place, as well as the contentious notion that a prison is an acceptable vehicle for economic growth. “In my eyes, it’s really just replacing one extraction economy with another one. And what’s being extracted are the Black urban youth,” says Savage. “[They’re] being used as commodities and being used as fodder and infrastructure and justifications for building these prisons.”

Tsolkas says that HRDC and its allies are preparing for litigation against the BOP, should the project be approved. Local landowners, environmental and social justice advocacy groups, and perhaps even prisoners in the Appalachian region would have standing to object. While EPA has provided input on Letcher County, noting that the EIS lacked necessary information, ultimately it does not have jurisdiction to intervene; the public is responsible for initiating a suit.

The groups would likely file a complaint under Title VI of the Civil Rights Act, which prohibits federally funded entities from racial discrimination. However, an EPA finding in support of their complaint would be absolutely historic. According to a Center for Public Integrity report, “In its 22-year history of processing environmental discrimination complaints, the office has never once made a formal finding of a Title VI violation.”

Jobs vs. Environment?

It would be all too easy to frame the conflict over the Letcher County prison as yet another tired “jobs vs. environment” debate. It has all the classic markings of one: a tragic, desperate state of rural poverty, the promise of great wealth, and a lot of progressive outsiders intervening to raise ethical questions about the means for procuring that wealth. But in this case, the primary concern is not a rare species’ habitat (though there are concerns about the effects of the prison on the endangered Indiana bat). In this case, the primary concern is the lives of human beings.

But before engaging in any debate as to this controversy, we would be remiss not to first examine this promise of great wealth.

The experience of other prison-hosting communities in the region indicates that the aforementioned jobs “pipeline” is unlikely to be very successful. Ryerson points out that in McCreary County, Kentucky, few residents were qualified for jobs at a local federal prison, as it was “highly recommended” that candidates have undergraduate degrees and prior experience working as correctional officers. In the end, roughly 90 percent of the prison’s jobs went to transfers, who did not choose to live in, and thus provide tax support to, McCreary County. The county remained among the poorest in the state. Clay County and Martin County saw similar results. Ryerson cites a study concluding that, across the U.S., new prisons tend to “impede” rather than encourage economic development in already poor rural counties.

The Letcher County prison will feature an on-site Unicor factory, though what the factory will produce is as yet either undetermined or undisclosed. Unicor factories sometimes threaten businesses that produce similar products, because they can be far more competitive by paying their prison workers less than $1 per hour. For example, Mitch McConnell intervened on one occasion when a Unicor factory attempted to compete against a prison-unaffiliated 100-person apparel factory in Olive Hill, Kentucky, for a government contract to manufacture Air Force clothing. In that case, McConnell convinced Unicor to back down.

The false promise of prison jobs lives on in spite of this evidence, and it feeds on misinformation and misrepresentation. Public officials are often responsible for generating the illusion, by now the product of PR creations and re-creations going back for years. According to activists, few Letcher County residents are fooled. They don’t believe the prison will solve their employment problems, but many are willing to accept even a handful of jobs without much thought for the externalities of the project.

Environmental Classism

If Donald Trump’s presidential campaign has taught us anything, it is perhaps just how forsaken, forgotten, and even desperate rural Whites feel. Letcher County residents have “been exploited by corporations in really, really important and terrible ways, and so oftentimes you’ll try to engage with conversations about racism and White privilege and they insist that it doesn’t exist,” says Savage. “Because ‘we’re hungry, too.’ Because ‘we’re living in poverty, as well.’”

Indeed, in this circumstance, it would be easy to forget classism once again, to defeat the prison and to consider one’s appetite for justice sated. But the pollution is the root problem to be addressed, one which not only has the potential to affect Black prisoners, but which even now affects the rural, mostly White, poor. What remains to be seen is whether the campaign can galvanize a movement not only for environmental justice in prisons, but also for environmental justice in Appalachia. After all, an understanding of the new racial context need not preclude an acknowledgement of longstanding class dynamics, which have complicated environmental health issues in the area for decades.

I pressed the activists on this point. “Personally, I’m not more interested in the health of prisoners, necessarily, than the health of people living in Letcher County,” says Tsolkas, who hopes that they can parlay this fight into greater awareness of water quality issues in the area. “We can fight this prison and use the battle as a way to say, ‘Look, this area’s polluted and has been neglected for a long time. No one should be subjected to it.’” Clean water is also likely to be a necessary prerequisite for just about any alternative industry if workers and customers are to feel safe.

There are ongoing efforts to pressure corporations into cleaning up the water, but political dynamics can frustrate progress. Sexton explains that, “A lot of these people are out-of-work coal miners,” who don’t get involved with environmental advocacy because they’re “afraid that they’ll never get a job in the coal mines again. And the sad part of that is: you and I know that’s never going to be the reality again.” Bringing cases to court can be tricky because of the possibility that local landowners will be held liable for their own contributions to pollution, and Sexton says that’s “no way to build a coalition” of locals and activists. It can also be difficult to pin the instances of pollution on particular operators and to identify someone with standing (that is, the legal right to bring a suit). Appalachian Voices did initiate suits against International Coal Group (ICG) in 2010 and Nally & Hamilton Enterprises in 2011 for more than 10,000 pollution discharge violations of the Clean Water Act each. The group found that the companies had filed “false, potential [sic] fraudulent” discharge monitoring reports to state officials. Both cases were settled for roughly half a million dollars and no requirement to clean up; maximum allowable fines for these violations amounted to hundreds of millions of dollars.

I asked Tarence Ray of Appalachian Voices about the Kentucky Department for Environmental Protection’s role in all this. He tells me that Charles Snavely, who was the executive vice president of mining operations for ICG when Appalachian Voices took ICG to court, is now the secretary of the Energy and Environment Cabinet. “The guy who was submitting all this fraudulent data is now top of the environmental regulatory agency in the state,” he says. “It’s a very intricately woven network of politicians who oversee the regulatory agencies, trying everything they can to make sure that they don’t actually function the way that a regulatory agency should.” Ray cited an example of known palm-greasing—the case of W. Keith Hall, a former state representative who was recently convicted for bribing a federal mine official to keep quiet about violations occurring on his property—to explain the lack of oversight. He also wondered whether funds misappropriation might be the reason behind the lack of infrastructure improvement.

“There’s over 25 sites where the streams run orange in Letcher County alone,” says Ray. “Not even just from recent mining, but from mining that occurred 50 years ago… If you ask somebody at the DOW, if you ask somebody at the Energy and Environment Cabinet, they’ll tell you, ‘Well, we’re underfunded and we’re understaffed.’ And it’s not a lie; they are. But it tells you where the state’s priorities are, too.” Ray’s hope is that, now that the coal industry is rapidly in decline, there will soon be less political pressure to look the other way.

HRDC is also concerned that the prison and Unicor factory (which may, like many others, deal in hazardous materials) could put a worrying amount of stress on the water treatment infrastructure. If the prison were sited on the preferred site, in Roxana, HRDC says that the increased demand would put the treatment facility at 90 percent capacity, and the EIS does not account for what might happen in the future—especially if the prison becomes overcrowded. Prison factories have frequently been found to violate environmental laws related to their industrial activities, and overcrowded prisons have a long history of causing raw sewage spills (and in some cases, sewage dumping) that can lead to pollution of local waterways. Already, roughly 24,000 people are living with water of questionable quality in Letcher County, and the proposed prison would add another 1,200 to that tally. But there is also a chance that the prison could exacerbate even further the quality of the water that both inmates and other residents would depend upon.

Will History Repeat Itself?

If coal and mass incarceration are two “extractive” industries, that’s not all they have in common. They are two unsavory consequences of a society that is not operating ideally and at peak efficiency. The coal industry is in decline in part because of affordable natural gas options, but also in large part because of policies that incentivize cleaner energy in an attempt to get us closer to an ideal, efficient society. At the same time, as the public feels increasing disgust at our status as the most incarcerated nation in the world, it may come to favor the decriminalization of minor drug offenses. It’s worth considering how changing policies may also alter the demand for prisons, upon which a “healthy” prison industry depends. Nearly 47 percent of inmates are drug offenders, and sentencing reforms and clemency have already led to the release of thousands. Even when suspending all other concerns, Appalachia still has to wonder whether it will soon have the rug pulled out from under it, again, leaving it scrambling to compete for yet another polluting and demoralizing industry.

The alternative is even scarier. Ultimately, the demand for prisons is manipulated by policy. To perpetuate a dynamic in which the employment of one distinct group of people depends upon the imprisonment of another—or even to uphold the illusion of this dynamic, as in Letcher County, where the promise of job creation is likely to fall short—is to gamble with a very sinister order. As Thorpe notes in the Washington Post, “[Underdeveloped rural communities] come to rely on prisons for jobs and revenue, as much as if it were a new textile or auto parts factory. That creates political pressure to keep prisons full.” Thorpe studied whether legislators from rural, prison-hosting communities were more likely than lawmakers from the same party and with similar politics to support “tough-on-crime” policies for nonviolent offenses. Her conclusion? “State lawmakers representing rural communities with correctional institutions make up a consistent and powerful voting bloc to uphold harsh sentencing laws and block criminal law reform.”

It is imperative also to consider that, even though prisoners cannot vote, prison populations are often used to manipulate a county’s influence through gerrymandering. Thorpe explains the effects of this: “Prison towns get more political representation and more local funding. Meanwhile, predominantly non-White urban communities lose both.”

Eastern Kentucky and the rest of Appalachia have plenty of other options, though none of the activists interviewed could name specific ideas for alternative economic initiatives. This failure on the part of activists and constituents to contribute to and participate in the plans for a hopeful future in eastern Kentucky is troubling, but potentially enlightening. If we can better understand the relationship between the people and their representatives that leads to this state of affairs, perhaps it is possible to disrupt the cycle.

The opportunity may come in the form of President Obama’s POWER+ Plan, a set of initiatives which now boasts bipartisan support—even from the likes of Hal Rogers. One of the initiatives would funnel up to $90M into economic revitalization and environmental cleanup of post-coal Appalachia. The money comes from the Abandoned Mine Land Fund, which coal companies have been required to pay into for decades. It would go towards “new resources for economic diversification, job creation, job training and other employment services for workers and communities impacted by layoffs at coal mines and coal-fired power plants” that could be put into, for example, the tourism, agriculture, and forestry industries. The initiative currently sits before Congress.