From Preachin’ to Meddlin’ : Jefferson County Department ...



From Preachin’ to Meddlin’:

Jefferson County’s Role in Shaping National Environmental Policy

by

Michael E. Fleenor, MD, MPH

Health Officer

Jefferson County, AL

Delivered March 16, 2010

To

The Jefferson County Medical Historical Society

Introduction

I’m not a historian by training and that above anything else in the presentation today that will become abundantly obvious. For that I apologize in advance. I’m sure that you will be gracious enough to listen to this part of our local public health history without viewing it through our usual physician’s “jaundiced eye.”

Some of you who are frequent attendees at these gatherings may recognize some of the basic facts of this episode in our local medical and public health history. Dr. Bayard Tynes summarized these events in his overview of Jefferson County’s public health history last October. Beyond what Bayard has previously shared, what I will do this morning is to amplify considerably on the basic facts with the intent of drawing out some of the unseen and unheard events that would be lost to history altogether as some of us become older, our memories begin to fade, and finally pass from the scene.

With that said, and as a prelude to this talk, I have to say that by thoroughly investigating this subject, a subject which has largely taken on mythical status through the years at the Jefferson County Department of Health, I have a greater appreciation, even respect, for what the best historians do so well. They do not simply recount events of the past but also convey a bit of the drama of the moment and then impute a measure of plausible interpretation and meaning to those events.

I cannot remotely claim a similar skill. And I’ll make an explicit admission from the outset that most of the interpretations you may hear today, other than the most obvious ones, are my own extrapolations from a number of sources. Most of the actual events are distilled from newspaper accounts in the Birmingham News. These reports were supplemented by recent interviews of some of actual participants in the events and in preparation for this lecture, were kind enough to allow me to use their recollections and interpretations as substantiation for some of the conclusions.

As I look at this audience, I see that many of you likely were in Birmingham at the time of these events and know some of the persons in this story, or at least recognize the names of some of the individuals who helped shape this episode of our local history. I also understand that one of the beauties of this venue is that part of what is recorded for this “sliver” of posterity is your own recollections that will enrich my renderings today. I hope you’ll share those at the end of my talk.

The Context of 1971

All historical events have a context and by logical deduction, it is almost a truism that “a text without a context is a pretext”. With that in mind, let me refresh our memories about the context of this momentous event in 1971.

First, our cultic or community memory in Alabama for almost any event, even if not a well-rounded representation of the actual prevailing historical context, is always shaped by sports, and football in particular. Again it is a truism in Alabama that football was and still is so dominant a pre-occupation that it is not surprising that some of the events I’ll recall for us today, if noted at all at the time they occurred, were quickly eclipsed in our memories by some of the athletic events that fall. So, I’d like to do an Alabama version of the “mini mental status exam” and test your long term memory about other likely more memorable events that were also going on in Alabama the fall of 1971:

1) Alabama and Auburn, were both undefeated and ranked #2 and #5 respectively, when they met in the Iron Bowl. Who won that game? Alabama won that match between Shug Jordan and Bear Bryant that left Auburn with a 9-1 record, and earned Bear Bryant the SEC Coach of the Year Award.

2) After the Iron Bowl, the University of Alabama football team was on a roll toward a possible national championship. Nebraska (ranked #1 with a record of 12-0) and Alabama (ranked #2 with an 11-0 record) were destined to decide who was # 1 in nation in a post-season match. In which bowl did they compete? And how did that match-up turn out? Nebraska embarrassed AL in the Orange Bowl 38-6 and repeated as national champions.

3) Pat Sullivan and Jerry Beasley were an almost unbeatable tandem that gave Alabama a run for its money in the Iron Bowl. What award did Pat Sullivan win that year? Sullivan won the Heisman Trophy. By the way, what AL connection did Heisman have to Auburn? He was Auburn’s 1st football coach before spending many years at Georgia Tech.

4) Bill Battle, who played under Bear Bryant, and later became Head Coach of the University of Tennessee, in an effort to rebuild his rather weak offense in 1971, was eagerly awaiting the arrival of a Huntsville native, who also happened to be the 1st African American quarterback to play for the University of Tennessee. Who was this? Condredge Holloway. Incidentally, I played against Holloway in junior high school basketball and can attest to his athletic prowess in more than football! In fact, he was being recruited to play professional baseball right out of high school as well.

Environmental and Legal Context

Well, given the accuracy of your recollections about these events, which we Alabamians are likely genetically pre-wired to remember, we may have some hope that you will be able to recall elements of this less obvious episode, with its more important consequences for our national, state and local public health, than the importance of the sports events that fall (although, perhaps some of us would be willing to debate even that statement!). Let me set a context for these events that were running parallel to the sports events we just revisited.

Birmingham and Mobile were the two most polluted cities in Alabama. Birmingham with its steel and coke industries qualified as one of the most air polluted cities in the South and in addition, competed well against other industrial cities in the nation for that dubious distinction. Due to the increasingly well-documented links between air pollution and pulmonary disease, including an article by Dr. Ben Branscomb at UAB, helped define the need for the Federal Clean Air Act of 1970. This act empowered the Environmental Protection Agency (EPA) to promulgate and enforce federal environmental air regulations and forced states to apply the regulations to their own environmental laws.

This federal law clearly and more stringently defined the standards states would have to incorporate into their state environmental laws to bring down levels of particulate matter emitted from industry and utilities.

To its credit, in early 1971, the Legislature of the State of Alabama rather quickly passed Alabama’s own clean air act that complied with these federal requirements. That state act empowered an Air Pollution Control Commission to establish enforceable state regulations that comported with both the state and federal clean air acts. However, the state act required Governor George Wallace to appoint members to this Commission. It was months before this decision was made. In the meantime, AL was left without any enforcement authority.

The Social Context

Cameron McDonald (Vowell), the President of a student led environmental activist group called, Greater-Birmingham Alliance to Stop Pollution (GASP), remembers, “It was pretty clear that Governor Wallace was in the back pockets of ‘Big Business’ so there was little incentive for him to move quickly to select members of a Commission that would enforce air emissions controls on Alabama’s economic engines.” No Commission was selected for over 6 months after the act became law, leaving particulate matter emitted through industry smoke stacks seriously under-regulated.

During this lack of executive action by Governor Wallace to select a Commission throughout the long hot summer of 1971, GASP, which consisted of a small group of only 15 student leaders and perhaps as many as another 50 others who periodically joined in, literally took to the streets to demonstrate in front of some of the largest air polluters in the area. They wore gas masks and waved posters decrying the impact of the companies’ emissions on the environment and the public’s health. They even took their message into homes by speaking with garden clubs about the impact of air pollution on the community.

Cameron McDonald (Vowell) recalls, “Boy, you wouldn’t think it, but those little ladies were a fairly hostile audience. They had been told by their husbands, who worked in the mills and had apparently been primed by management that our group was threatening their livelihoods and if we got what we wanted they would be out of jobs.” Remember, those were the days when the industrialists proclaimed with undisguised pride that smoky skies were the Magic in the Magic’s City’s booming local economy, one that was disproportionately dependent upon heavy industry for its success.

Expressing a decidedly unique counterpoint of view by the industrialists was Bob Truet, the flamboyant Birmingham Zoo Director and self-proclaimed nudist, who allowed members of GASP to occupy one of the primate cages at the Zoo labeled with a sign that read “Homo sapiens: the only species known to pollute its own environment and wage war.” A showdown was brewing!

The Events of November 15 – 20, 1971

The week of November 15, 1971 brought matters to a head. The entire Southeast was under a high pressure dome that birthed a thermal inversion in Jones Valley, the cradle of Birmingham. Birmingham was experiencing “Indian Summer” as temperatures hovered in the low to mid 80s. Steel plants were operating at full throttle and churning out smoke that due to this thermal pressure “lid” had no place to go. Birmingham was literally being choked in a layer of smog so thick that the cupola on Jefferson Tower could hardly be seen from Vulcan. (Attachment 1 – picture of smog and Jefferson Tower). The air was literally becoming too toxic to breathe.

Since beginning his tenure the year before in 1970, the Jefferson County Department of Health had been led by a young Health Officer from rural west Alabama by the name of Dr. George Hardy (1970-76), A member of his executive team was Guy M. Tate, who had decades of administrative experience in public health and had developed a wily knack for reading the political climate in Birmingham and Alabama, which more than once helped the Health Department negotiate those shallow shoals. Paul Pate, the irascible Environmental Health Director at the Department and as a diplomat, the polar opposite of Tate, was the technical expert about environmental health. The three huddled together to decide how to handle this rapidly evolving environmental emergency. The Alabama Clean Air Commission that George Wallace had held captive for months had finally been appointed on Monday, November 15 but in spite of that fact, the Health Department was left without any active set of enforceable regulations to compel the major polluters to reduce emissions.

The Health Department had only one non-legal alternative: to ask the industrialists to voluntarily reduce emissions. All 23 major emitters of air pollution in the Birmingham area were called and later mailed a letter explaining the situation and asked to moderate furnace output with a goal of attaining a 60% reduction in particulate matter below prevailing and increasingly threatening pollution levels. The response to that request was modest by any measure. Many of the smaller companies complied by cutting back their operations by at least 20% of usual operating capacity to mitigate their contributions to the problem. Some even went so far as cutting 60%. The largest emitters, however, which contributed over 70% of the total air pollution, for all practical purposes, ignored the request. These culprits included the likes of U.S. Steel, Stockham Valve, Connors Steel, U.S. Pipe and ACIPCO. Without reductions by the “Big 5”, air pollution levels were expected to continue to approach seriously unhealthy, even dangerous levels.

What made matters worse was that the weather was not expected to cooperate any time soon: The unseasonably high temperatures and barometric pressure were expected to last throughout the week. Over several days, the Health Department anxiously monitored particulate matter readings which began to increase progressively through several critical thresholds: “alert” (> 375 mcg/m3) and then the “warning” threshold (>625 mcg/m3) was exceeded. On Tuesday, Nov 16, particulate matter counts hit 771 mcg/m3 with concerns that levels would continue to barrel through the highest “emergency” threshold (>875 mcg/m3) unless immediate action was taken.

While waiting for greater voluntary cooperation of industry, the Jefferson County Department of Health had been conferring frequently throughout this emerging health crisis w/the Alabama Department of Public Health and the State Attorney General. They realized that they could not count of voluntary compliance and therefore, began developing a contingency plan if industrial leaders failed to agree with their request. As the “emergency” threshold appeared imminent, they concluded that they had no other alternative but to approach the federal government for assistance.

The regional and national offices of the Environmental Protection Agency (EPA) and the U.S. Department of Justice had shown increasing interest in this evolving problem. Due to the absence of state and local legal options and after discussing the situation with Dr. Hardy, all parties concurred that the EPA and the U.S. Justice Department should step in.

And they stepped in BIG. For the first time in its early history as a federal agency, EPA made a momentous decision to compel industry to employ active mitigation efforts to reduce harmful air pollution. Documents were prepared for a 10 day temporary restraining order (TRO), and Judge Sam Pointer, Federal Judge for the Northern District of Alabama (who died a little over a year ago), was rousted from sleep at home around 1:45 am Thursday, Nov18 and signed the order compelling compliance by the polluters. In the wee hours of the morning immediately following the signing of this order, federal marshals fanned out throughout Jefferson County to serve the orders on all 23 companies.

The complicit industries initially were taken by surprise but regrouped quickly. They immediately challenged the Health Department’s assertion that they made little or no effort to comply with an order to reduce their emissions, then put workers, who were considered unnecessary to maintain the furnaces at reduced capacity, on furlough without pay. Their attorneys then went to work. Macbeth Wagnon, a prominent local lawyer, representing a number of heavy industries in the Birmingham area, responded to the order emphatically. No doubt articulating some of the muted outrage of industry about this governmental intrusion into private business affairs, he exclaimed that this action by the federal government was “unprecedented [which it was, in fact!] and unnecessary [just the contrary!].” He also went so far as to press the federal government to compensate the industries for the drop in productivity demanded in the TRO, using a legal argument under the 5th Amendment of the Constitution of the United States that the federal government is required to repay lost revenue after “seizing private property.” Judge Pointer demurred: Among other more arcane rebuttals for rejecting this Constitutional argument, the federal government was not compelled to reimburse any parties for actions that those parties are required to take to comply with the law to protect the public’s health.

In the middle of this legal drama, ironically, but mercifully, Mother Nature relented shortly after the TRO was issued. The high pressure system that trapped the pollution began to drift east and particulate levels at the North Birmingham monitoring station dropped during the day almost in half to 410 mcg/m3. Despite that improvement, JCDH officials were not assured that if the TRO was lifted prematurely and industries began to ramp up production again, that levels would not again begin to rise to dangerous levels. Consequently, the TRO remained in force until the next morning. The weather continued to improve and particulate matter levels dropped to 217 mcg/m3. Judge Pointer vacated the TRO Friday morning, November 20th, officially ending the court’s order for industry to comply.

Congressional Hearings, Saturday, November 21, 1971

Industries were chafed about this single “unprecedented” event. Even more than the immediate episode, they were concerned about the precedent it established and its long-term implications. They began to counter- punch.

They contacted the U.S. House Sub-Committee on Public Health and Environment and asked that a hearing be conducted in Birmingham to review the actions by EPA, federal justice and state and local health authorities. Rep. Paul G. Rogers of Florida, the Chair of this sub-committee was not terribly predisposed to businesses’ concerns related to these recent federal actions, the reason being, he was one of the authors of the federal Clean Air Act of 1970. Nevertheless, in response to industries’ request for a hearing, Rogers convened his 3 member sub-committee in Birmingham in a room across the street from the Health Department, which at the time was located where Tinsley Harrison Tower is now.

Dr. Hardy was looked upon to provide all of the logistical arrangements for this meeting. He related in a recent interview that it was clear that business was flexing its muscle by inviting the House subcommittee to Birmingham and he was not particularly sanguine about it. Besides the obvious challenge of business about this collaborative action by health and justice officials, it required a measure of “pomp and circumstance” that these events inevitably bring. Joanne Glisson, the Deputy Staff Director of the Interstate and Foreign Commerce Committee, Subcommittee on Health and the Environment, contacted Dr. Hardy to inform him that to properly handle the Congressmen during the visit to Birmingham, that 6 limousines would be required to ferry the Congressmen and their staffs back and forth. After hearing that expectation, Dr. Hardy acerbically quipped, “Look, lady, I don't know who you think you're talking to.  But I’ll tell you that they'll be lucky to find cabs down here - much less limos.”

After cooling down, Dr. Hardy conceded that he would look into it and passed the baton to Guy Tate to investigate options. Always conscious of the possible political ramifications these types of responses, Tate contacted Dr. Joseph Volker, President of UAB, and asked if the University could help address this request for limousines. At Dr. Volker’s direction, Dr. Dick Hill quietly made these arrangements for the delegation at UAB’s expense! Later Ms. Glisson humorously remarked to Dr. Hardy, “I don’t often get talked to that way when I call. . . I must confess that it was refreshing that someone would be so honest!”

Given Rep. Rogers’ sympathetic predispositions favoring the EPA’s actions, it was not a surprise that the hearings did not go well for industry. In addition to Dr. Hardy, numerous individuals testified about health reasons for the aggressive response by health and justice. Area businesses voiced their concerns through the President of the Birmingham Chamber of Commerce, Norman Pless, a well-known banker and community leader and industry attorneys continued to insist that this action was too aggressive. Dr. Hardy retorted to those arguments, “If you are saying that we should be counting bodies before we do something, I disagree!”

Perhaps venting some of their ire at being furloughed during this event, even the unions appeared to be in the environmentalists’ camp. Howard Strevel, Director of District 36 of the United Steel Workers testified that this episode could have been avoided by industry implementing changes in pollution control that had been suggested to them for several years but because of no action, industry showed “callous disregard for the health of this community”.

When all was said and done, Rep. Rogers concluded that industries’ delayed response to the initial request for voluntary compliance forced these legal actions. He added that they were completely legitimate and one of the reasons the federal Clean Air Act was enacted in the first place.

An Alabama Clean Air Commission is Finally Born

Curiously, the Monday of the week this crisis began to unfold, Governor Wallace appointed the Alabama Clean Air Commission but it had not had time to convene a meeting much less suggest regulations under the Alabama Clean Air Act. However, on Tuesday, November 23, 1971, the week following this “public health emergency” was declared, W. T. Willis, an Alabama Department of Public Health environmentalist since 1948, was appointed as Interim Director of the Commission. Other appointees included Dr. Ira Meyers, State Health Officer (who as Health Officer was designated by the law as Chair); Dr. Ben Branscomb (prominent UAB pulmonologist and health activist), Arthur Weeks (Dean of the Cumberland School of Law); Grady Cox (Dean of Auburn University’s School of Engineering); and several other less obviously qualified choices, including an assistant to the Dean at the University of Alabama School of Law, a representative from a workers’ union, and a representative of the bankers association in Alabama.

Their task ultimately was to promulgate rules and regulations under the Alabama Clean Air Act that would give the state responsibility and control over further air enforcement in Alabama. A little disguised subtext of this rapid move to constitute the Commission was to keep the federal government from intruding in Alabama again. Although it was a less dramatic move and less well planned than the one the Governor orchestrated in the school house door at the University of Alabama in 1963,2 the words used by industry

lawyers, however, after the federal actions the prior week were disagreeably redolent of Governor Wallace’s declaration less than 10 years earlier.

From the outset, the Commission realized that this was completely new territory for citizens of Alabama, To assure compliance to the law, industry and the body politic had to understand the law. So, one of the first tasks the Commission undertook was to educate

the citizens of Alabama about environmental issues. In early December, a series of workshops was arranged in Huntsville, Mobile, and Birmingham. Like circuit riding preachers, the Commission and other nationally and locally recognized authorities on air pollution “made the rounds”.

These workshops had a palpable environmentalist bent and this appeared to intimidate industry, especially in Mobile. The Mobile workshop was planned to be held at the University of South Alabama where student activism was at a peak. Because they feared what the students at USA might do, the industrialists asked for a “change of venue” away from the campus. They were denied the request with the assurance that if the workshop got out of hand, that they would then shift the site. Fortunately, their fears were unfounded; the students were civil, and the workshop proceeded without incident.

Among the wide variety of speakers at the Huntsville workshop was Cameron McDonald (Vowell), President of GASP; Alan Heldman, a Birmingham attorney representing the Alabama Tuberculosis Association; and Dr. Robert Burks1, Past President of the American Chemical Society.

Among some of Dr. Burks2 seminal, prophetic remarks that even today, nearly 40 years later are embarrassingly resonant:

“. . . we can use solar energy that causes no pollution. . . Also we must consider development of mass transit systems. It takes 19 lanes of super highways to carry the same number of passengers that could be transported on a single lane. Just think of the pollution this could eliminate.”

Do we even have to look 2 miles from here at our own Highway 280 and bow our heads in shame for not having the political will to be closer to implementing this suggestion?

He went on to say:

“It has only been recently that a list of the 20 worst polluters in Birmingham has been made public. I think this should be continued. It puts public pressure on the offenders.”

At least we got that one right. The Jefferson County Department of Health is still in the forefront of enforcing compliance and continues to be one of the strongest, longstanding advocates for mass transit, for several reasons, not the least of which is to improve environmental health.

_______

1 “The unwelcomed, unwanted, unwarranted and force-induced intrusion upon the campus of the University of Alabama today of the might of the Central Government offers a frightful example of the oppression of the rights, privileges and sovereignty of this State by officers of the Federal Government.” -- from the STATEMENT AND PROCLAMATION OF GOVERNOR GEORGE C. WALLACE, UNIVERSITY OF ALABAMA, June 11, 1963.

2 Dr. Robert Burks lost his job with Southern Research Institute after making these comments. Of note, he and his wife Mary, founded the Alabama Conservancy in 1967, later to become the Alabama Environmental Council. She was the singular most significant advocate for federal designation of wilderness areas in the Eastern United States which was translated into her successful efforts to secure this special designation for a part of the Bankhead National Forest in northwest AL, known as the Sipsey Wilderness.

I could continue with more than more 4 decades of history in proactive environmental policy and implementation by the Health Department catapulted by this one episode in history over nearly 40 years ago in Jefferson County, but I’ll stop here in the interest of time.

Some Reflections on History

Before we conclude our session this morning though, I would like to take a break in my “free association” of history to pose a question:

“If the most important reason we study history is to learn from it, and in particular, not repeat mistakes (with proper attribution to early 20th century philosopher George Santayana), then what do these events teach us?”

First, student activism was more than a simply a botfly biting the backside of the big mules of industry. It had some largely unrecognized political influence as well. Cameron McDonald (Vowell) recalls, “Student activism for environmental causes shook up the local political machinery of the day too.” She elaborated that the new federal Voting Rights Act (26th Amendment) passed in July 1, 1971, permitting 18 year olds, the ages of many of the GASP activists, to vote. The first election cycle that allowed them to exercise this new right was the following fall, 1972. No longer could this energetic and determined group of young citizens be overlooked by candidates or they would likely do it to their peril. Environmental policy was a prominent part of what younger voters wanted addressed.

The fact that they had never voted before made them an unknown quantity for local politicians, including Ben Erdreich, Chris McNair and others, who were understandably unnerved about the impact this group might have on their political futures. Consequently, the milieu was ripe for a new era of political activism, and GASP took advantage of that strong leverage to press their points. As a consequence of applying that pressure, the sensitivities of our local politicians about environmental issues were not an unimportant part of the platforms that ultimately got them elected.

Dr. George Hardy (in his usual self-deprecating manner), when prompted recently to reflect on this series of events nearly 40 years after its occurrence, agreed:

“I didn’t know what I was doing with so little experience, so first I had to depend on Guy Tate to help get me through it. But even that internal expertise and experience would have been insufficient to take a bold move to compel the actions required. We also needed a great deal of public support and GASP was the catalyst to get that started. It underscores the importance of having a very motivated group of advocates to push an effective public health agenda because the health officer and the health department cannot do it alone. Without that, it is immensely harder to effect change.”

The implications were clear: Without a good bit of social activism before this event occurred, the tipping point for change in fall, 1971 would have been less likely to occur.

Dr. Hardy further expanded on “lessons learned” when he said:

“It is also important to recognize the ingredients of positive social health activism. It requires the combined efforts of many different people to get this work done. . . academics (like Dr. Ben Branscomb) who can speak in clear, understandable and passionate terms about the science behind health; the private medical community (like Dr. A.H. Russakoff), who spoke for their patients, whose health is frequently most affected by outside environmental influences; the local medical society (represented by Dr. John Slaughter, Chairman of the Board of Health), who was a strong advocate for decisive public health action and who was willing to stand up to and not bend under pressure exerted by those in power. . . And finally, again never underestimate the influence of a small group of young people (exemplified by Cameron McDonald Vowell, and members of GASP) to push a social agenda that can change the world.” (see Attachment 2 – Russakoff, McDonald-Vowell, Hardy, Branscomb)

The one lesson that still remains to be taught is the one that we here in this audience will convey to future generations. What have we done. OR better yet, what will we do to make a difference that can be looked upon in retrospect some 40 years later that could called a critical turning-point for a healthier Jefferson County? (Attachment 3 - Birmingham skyline today)

Thank you!

Resources

Contemporaneous Reports of Events

The Birmingham News, Vol. No. 250, Nov 18, 1971, pp. 1, 3, 6

The Birmingham News, Vol. No. 251, Nov 19, 1971, pp. 1, 6

The Birmingham News, Vol. No. 252, Nov 20, 1971, pp. 1, 11

The Birmingham News, Vol. No. 253, Nov 21, 1971, pp. 1, 4, 24

The Birmingham News, Vol. No. 254, Nov 22, 1971, p. 1

The Birmingham News, Vol. No. 255, Nov 23, 1971, p. 14

The Birmingham News, Vol. No. 271, Dec 9, 1971, p. 2

The Birmingham News, Vol. No. 272, Dec 10, 1971, p. 2

Personal interview by the author with Cameron McDonald Vowell, PhD, January 7, 2010.

Personal interview by the author with George Hardy, MD, January 11, 2010.

Scholarly Review of Events and/or Issues

Branscomb, B. The application of the respiratory flow-volume loop in epidemiologic surveys. Am Rev Respir Dis 1962 Nov;86:697-8.

Hardy GE, Pate P, Robison CB, Willis WT. First Use of the Federal Clean Air Act’s Emergency Authority: A Local Analysis. American Journal of Public Health. Vol 64, No. 1, 1974. (includes a retrospective review of events and legal considerations into actions)

Mermin SE, Graff Sk. Framing Public Health Matters: A Legal Primer for the Obesity Prevention Movement. Am J of Public Health, Vol. 99, 2009, p. 1802 (includes a review of legal requirements for actions to be considered in a variety of public health situations, in this case, obesity and nutrition, but can be applied to enforcing environmental law or ordinances).

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