by Cedar Weyker
Between 1938 and 1963, Reade Manufacturing Company leased a lot on the corner of 28th Street and Hiawatha Avenue in South Minneapolis. The Minnesota Department of Agriculture reports that, during their nearly 25-year residency, the Company used the site to process technical arsenic into sodium arsenate, which they then sold as a biocide. US Borax subsequently used the site to store arsenic pesticides from 1963 to 1968. However, it wasn’t until construction of the Hiawatha light rail corridor began in 1994 that the city of Minneapolis uncovered arsenic soil contamination. After collecting soil samples from nearby residential neighborhoods, the Minnesota Department of Health determined that dust contaminated with arsenic had blown into residential neighborhoods and leached into the soil.
The old Reade Company and US Borax site–now known as the CMC Heartland Lite Yard–was excavated between 2004 and 2005. The U.S. Environmental Protection Agency (EPA) placed the South Minneapolis area surrounding the site on its National Priorities List, and dubbed it the South Minneapolis Residential Soil Contamination Site. Between 2004 and 2011, the EPA excavated the topsoil of more than 600 residential properties in the Phillips, Seward, Longfellow, Corcoran, and Powderhorn neighborhoods. My family’s house was one of those properties; I watched the workers dig up our front lawn one hot summer afternoon from my bedroom window, just six blocks south of the old Reade plant.
A 2008 report by the U.S. Department of Health and Human Services for the South Minneapolis Soil Contamination Site notes that arsenic is most dangerous when inhaled or ingested orally. Thus, significant levels of arsenic in soil poses an increased risk to children and other individuals who frequently come into contact with soil and then fail to wash their hands. Properties with over 95 ppm (parts per million) of arsenic are a public health hazard, and can cause cancers, impaired nerve function, and vascular damage. Humans have recognized that arsenic is a poisonous substance for thousands of years.
The area affected by the soil contamination has been coined the “arsenic triangle” by some, due to the triangular shape of the former CMC Heartland Lite Yard. Located within the Phillips neighborhood of South Minneapolis–where 70% of residents are people of color–the area includes Little Earth, the only indigenous-preference Section 8 rental assistance community in the United States.
In 2006, the Minnesota Department of Health refused to recommend an in-depth “health study be conducted” due to the difficulty of definitively linking arsenic exposure with disease: “[c]ancer for example, can be influenced by factors such as genetics, diet and smoking, which are difficult to sort out from contaminant (arsenic) exposures.” Although every zip code affected showed increased incidence of lung cancer among residents, MDH noted that rates of other cancers were actually lower in the same area, and protested that “diet and smoking are very important factors that could contribute to the kinds of cancers that were found to be higher than expected.” In response, Graduate Research Assistant Sing Wei Ho urged that community members “must understand the impact of this arsenic contamination by studying the health of people who have been chronically exposed to arsenic and other contaminants for decades.” However, to my knowledge, no major health study was ever undertaken.
Over the years, Phillips and other nearby neighborhoods have suffered a disproportionate “environmental burden” due to toxic spills, traffic pollution, and a high concentration of industry.
Dorceta Taylor has documented “a long history of noxious and hazardous facilities being located within or close to minority and low-income communities.” However, she notes, “it is only in the past three decades that a sustained movement focused on environmental inequalities has arisen.” Id. Taylor explores the legal resources available to those who wish to challenge government action and inaction in her 2014 book. First, she explains that several scholars have conducted studies that suggest that the EPA’s pollution clean-up policies are racially discriminatory. Id. at 99-103.
Next, she outlines the federal remedies available to communities seeking reparations for environmental injustice. The 14th Amendment’s Equal Protection clause would seem, on its face, to be a useful tool for environmental justice activists, but Taylor cautions that the burden of proof is steep: “the proof of intent to discriminate has been such a difficult standard to meet that few EJ cases are being brought forward as Fourteenth Amendment challenges anymore.” Id. at 106. Disparate impact is insufficient for Fourteenth Amendment claims; there must be an intent to discriminate. Id. Disparate impact is also insufficient proof for Title VI claims, making Title VI complaints “an ineffective strategy for halting or reducing the exposure to environmental hazards.” Id. at 122.
Minnesota state law provides a few avenues for mitigating environmental injustice, with mixed success. The Minnesota Environmental Rights Act (MERA) allows private citizens to bring civil suits for declaratory or injunctive relief “against any person, for the protection of the air, water, land, or other natural resources located within the state.” In 2020, the White Bear Lake Restoration Association sued the Minnesota DNR using MERA, alleging that the DNR caused lake levels to drop. The Minnesota Environmental Protection Act established requirements for environmental review of serious undertakings. On March 28, 2022, the Minnesota Court of Appeals dismissed an appeal from a group of North Minneapolis climate activists, holding that “the legislature did not authorize certiorari review of a final decision regarding an alternative urban areawide review.” The plaintiffs–Community Members for Environmental Justice–claim that the city failed (in violation of MERA ) to adequately study the environmental impact of the project on their community, where the majority of residents are people of color.
However, there is little in the way of legal relief for communities experiencing the effects of decades-old pollution. Claimants cannot recover from Reade Manufacturing Co., U.S. Borax, or even CMC Heartland–Minnesota’s statute of limitations for environmental pollution states that “no person may recover damages . . . unless the action is commenced within six years from the date when the cause of action accrues.” Some, such as Catherine Millas Kaiman, believe that the answer to environmental injustice is community reparations, initiated by “local, state, and federal legislation.” Given that no major health study has been conducted, it is unclear what reparations would look like or how they would be distributed in the context of Minneapolis’ arsenic triangle.
A good first step would be to listen to the affected communities. Unfortunately, in November 2021 the outgoing city council approved the plan to relocate a water distribution yard to the now-vacant CMC Heartland Yard Site over the protests of the East Phillips Neighborhood Institute (EPNI). The move would increase pollution in the Phillips neighborhood through increased traffic in order to reduce greenhouse gasses in the city as a whole. Instead, EPNI hopes to turn the site into an urban farm. In March, the city council moved to reconsider, but Mayor Jacob Frey vetoed their resolution, though he stated that he “would sign another version of the resolution that establishes more specific expectations for any community-led redevelopment proposal.” The city waits for a redrafted resolution from the city council.