The superfund site sits near an impoverished residential area, a historical black neighborhood, said Michael Hansen, executive director of GASP, the Greater Birmingham Alliance to Stop Pollution.
A visitor to the neighborhood would see an area bearing the marks of heavy industry – abandoned buildings and piles of coal. It’s where “two of the most toxic polluters in Alabama are located there within a couple miles of each other,” Hansen said.
House values near the superfund site, Hansen said, range from $20,000 to $50,000. A school that serves kindergartners to eighth graders sits a handful of blocks south of 35th Avenue.
“Per usual, those folks suffer from significantly higher levels of pollution than wealthier white communities,” Hansen wrote in an email. “We think that’s immoral and wrong.”
In mid-2014, GASP petitioned the EPA to expand the Superfund site to include two areas, Tarrant and Inglenook. GASP persuaded the EPA and the Alabama Department of Environmental Management (ADEM) to test whether ABC Coke and other businesses were responsible for any contaminations there.
In September 2014, the EPA proposed adding the site to the National Priorities List, which would fast-track the cleanup of the site using the federal Superfund trust fund. Alabama would have to pay 10 percent of the cleanup – millions of dollars.
Meanwhile, Gilbert and McKinney worked with Drummond’s Roberson to prevent ABC Coke and Drummond from getting stuck with the bill, according to the indictment.
The strategy was to prevent expansion of the Superfund site and stop the EPA from putting it on the National Priorities list by getting residents in the area to oppose the EPA proposals.
“As part of the overall strategy,” the indictment states, “Balch & Bingham paid Representative Oliver L. Robinson Jr., through a valuable consulting contract with the Oliver Robinson Foundation to, among other things, take official action favorable to Balch & Bingham’s and Drummond Company’s interests in matters related to EPA’s actions in north Birmingham.”
The defendants created a Delaware nonprofit, Alliance for Jobs and the Economy, through which they gave $360,000 to Robinson, beginning with a payment of $14,000 in February 2015, according to the lengthy indictment.
Gilbert allegedly started talking with Roberson about contracting with the lawmaker’s nonprofit November 2014. Gilbert and Roberson contacted Robinson about Balch and Bingham contracting with Robinson’s nonprofit. In exchange, the Robinson was to put pressure on ADEM, the Alabama Environmental Management Commission (AEMC) and the EPA, pressing them towards Drummond’s preferred outcome.
Robinson sent Gilbert an email to Gilbert on Dec. 11, 2014, stating: “Joel go back to Dave and the Drummond people and let them know that we will need $7,000 per month. … Finally, make payments to the Oliver Robinson Foundation. It was decided the foundation is best because all types of corps support our foundation,” according to the indictment.
After forwarding that email to Drummond’s Roberson, Gilbert emailed Rep. Robinson: “Spoke to Drummond. They have approved your request - $7,000 per month. Call me when you get a chance.”
Both emails are quoted in the indictment.
In January 2015, the EPA’s public comment period about whether add the Superfund site to the National Priorities list closed. ADEM contacted the EPA and asked if the proposal could be withdrawn because the State of Alabama had raised some issues about it.
In February that year, Gilbert “made an urgent request” asking his firm’s accounting department to cut a check to Robinson’s foundation for $14,000. The next day, he sent a $14,000 invoice to Roberson.
On Feb. 16, 2015, Gilbert gave Robinson the $14,000 check and together they signed a contract. In a few days, Robinson would meet with the AEMC.
“Balch & Bingham’s contract with the Oliver Robinson Foundation specifically required that ‘[t]he existence of this agreement shall also be kept confidential by consultant,’” the indictment states.
According to the indictment, the defendants directed Robinson to record his conversations with GASP and the EPA. They gave him talking points to make, drafted letters that Robinson out on his official letterhead, then signed and sent to the AEMC and the director of ADEM.
Gilbert wrote one such letter for Robinson in March that year, requesting information from ADEM so Robinson could better understand its position to “better serve my constituents,” according to the indictment.
At the Feb. 20 meeting with AEMC, with the ADEM director in attendance, Robinson fought listing the area as a Superfund or putting on the National Priorities List. He said there was no evidence to support it, the indictment states. Robinson said that labeling the area a Superfund site would stall development because his constituents would be “considered to live in a dump.”
The Oliver Robinson Foundation used an organization called Get Smart Tarrant to communicate with area residents about the Superfund site, never disclosing that it was a paid representative of Drummond’s position, prosecutors said.
In May 2015 Gilbert wrote a joint resolution for Robinson to introduce into the Alabama House, urging the Alabama attorney general — Luther Strange — and Department of Environmental Management to “combat the EPA’s overreach” in the 35th Avenue Superfund site.
The resolution, SJR97, moved through the Legislature and passed June 4, and was signed by Governor Robert Bentley.
In response to the indictment, Balch & Bingham, one of the largest firms focused on environmental law in the South, released a statement saying if the charges prove true, the actions of the firm’s two attorneys violated its ethical values.
Gilbert planned to “vigorously defend himself,” the firm said, because he denied the charges and the firm anticipated that McKinney would do so also.
“We are continuing to cooperate fully with government authorities because, in part, we believe strongly that our firm is not implicated more broadly in the alleged conduct,” the statement said. “Both Mr. Gilbert and Mr. McKinney are on an indefinite leave of absence.”
Roberson, McKinney and Gilbert did not return emailed messages seeking comment. Gilbert’s email address responded with an out-of-office reply.
Roberson is listed on Drummond’s website as one of its media contacts.
In a statement unveiling the indictment, IRS acting special agent in charge of criminal investigation James E. Dorsey indicated that federal investigators may not be done investigating.
“The allegations against these defendants show personal gain and agendas were placed above the overall health of the citizens who lived and worked in this community,” Dorsey said. “Bribery of political officials is against the law and IRS Criminal Investigation will continue to assist with the ongoing effort to expose everyone involved in this conspiracy.”
Drummond, a privately owned company focused upon coal and coal products, reported more than $5 billion in revenue in 2016, according to publicly available information.
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