NCD980602163_19981123_Warren County PCB Landfill_SERB C_Dismissal of US-EPA's Office of Civil Rights complaint-OCR

MICHAEL F. EASLEY
ATTORNEY GENERAL
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State of North .Carolina
Department of Justice
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Judith Robb Bullock, Special Deputy Attorney General
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\Villiam R. Miller, Assistant Attorney General
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Nancy E. Scott, Assistant Attorney General
Kathleen 1\1. \Vaylett, Assistant Attorney General
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tur from :Ei>A's Office of Civil Rights re Select Steer
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Following is the text of a letter from Ann E. Goode, director of EPA 's Office of
Civil Rights. The letter ·was dated October 30, 1998.
RETURN RECEIPT REQUESTED
Father Phil Schmitter, Co-Director
Sister Joanne Chiaverini, Co-Director
St. Francis Prayer Center
G-2381 East Carpenter Road
Flint, Michigan 48505
Russell Harding, Director
Michigan Department of Environmental Quality
Hollister Building
P.O. Box 30473
Lansing, Michigan 48909-7973
Re: EPA File No. 5R-98-R5 (Select Steel Complaint)
Dear Fr. Scbmitter, Sr. Chiaverini, and Mr. Harding,
On August 17, 1998, the Office of Civil Rights (OCR) accepted for investigation
an administrative complaint filed on June 9, 1998 by Father Phil Schmitter and
Sister Joanne Chiaverini pursuant to Title VI of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000d et seq. (fitle VI), and EPA's implementing
regulations, 40 C.F.R. Part 7. The complaint alleges that the Michigan Department
of Environmental Quality's (MDEQ) issuanc.e of a Clean Air Act ( CAA)
Prevention of Significant Deterioration (PSD) permit to the Select Steel
Corporation of America for a proposed steel recycling mini-mill in Genesee
Township would lead to a discriminatory impact on minority residents and that the
MDEQ pennitting process was conduct~d in a discriminatory manner. In addition
to the allegations contained in the complaint filed with OCR, the Complainants
also submitted written information regarding alleged discrimination related to the
permitting of the proposed Select Steel facility in an April 22, 1998 letter from Fr.
Schmitter and Sr. Chiaverini to the Sugar Law Center, an April 29, 1998 letter to
David Ullrich, Acting Regional Administrator for Region V, and a June 9, 1998
petition to EPA's Environmental Appeals Board (EAB).
Title VI prohibits discrimination based Oll race, color, or national origin under
programs or activities of recipients of federal financial assistance. EPA has
adopted Title VI implementing regulations that prohibit unjustified discriminatory
effecrs which occur under federally-assisted programs or activities. 40 C.F.R. Part
7. Discrimination can result from policies and practices that are neutral on their
face, but have the effect of discriminating. Facially neutral policies or practices
that result in discriminatory effects violate EP A's Title VI regulations unless they
are justified and there are no less discriminatory alternatives.
MDEQ is a recipient of EPA financial assistance; therefore, MDEQ is subject to
the requirements of Title VI and EPA's implementing regulations. Section 7.35(b)
prohibits recipients from administering their programs in a manner that would
have the effect of subjecting individuals to discrimination because of their race,
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color, or national origin. Section 7.30 of EPA's Title VI regulations provides that
no person may be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving EPA
assistance on the basis of race, color, or national origin.
The June 9, 1998 Title VI complaint filed with OCR refers generally to the "unfair
and disparate burden of pollution [which] will fall on a group of minority ...
people." However, in other infonnation provided to EPA in writing and during
inteniews, the Complainants also raised specific concerns about the facility's
potential emissions of volatile organic compounds (VOCs ), lead, air toxics, and
dioxin.
As previously mentioned, OCR accepted the complaint for investigation in August
1998, and has completed its review of the allegations raised. In analyzing the
Complainants' concerns regarding air quality and public health effects, EPA has
determined that this facility would not pose an "adverse" effect on the community.
In this case, EPA did not base its finding on whether the effects would be disparate
since the effects did not rise to the level of "adverse." After reviewing all the facts
in this case, OCR has found that neither the Complainants' concerns regarding air
quality nor those regarding the opportunity for public participation rise to the level
of a discriminatory effect within the meaning of Title VI and EP A's implementing
regulations. Therefoi-e, OCR dismisses Complainants:' allegations in this case. The
basis for this determination is explained below.
The Investigation
EPA investigated this matter consistent with its Interim Guidance for Investigating
Title VJ Administrative Complaints Challenging Permits (Interim Guidance). EPA
has attempted to conduct this investigation expeditiously, taking into account the
need for certainty in the regulatory process associated with permitting new
facilities, while at the same time seriously reviewing the concerns expressed by the
Complainants.
EP A's ability to expeditiously render this decision was facilitated significantly by
the record of decision developed by the State in this case. In addition, analyses of
the kind credibly undertaken by the State to address concerns raised during the
permitting process not only substantially enhance the probability that State-issued
permits will withstand scrutiny under Title VI, but also enables expeditious
processing by EPA of administrative complaints filed under Title VI. Such
analyses early in the permitting process may also facilitate the State's early
identification and development of possible solutions to address potential Title VI
concerns.
Alleged Discriminatory Effect Resulting from Air Quality Impacts
As outlined in EPA's Interim Guidance, EPA follows five basic steps in its
analysis of allegations of discriminatory effects from a permit decision. "The first
step is to identify the population affected by the permit that triggered the
complaint. The affected population is that ,vhich suffers the adverse impacts of the
permitted activity." Interim Guidance at 8. If there is no adverse effect from the
permitted activity, there can be no finding of a discriminatory effect which would
violate Title VI and EP A's implementing regulations. In order to address the
allegation that MDEQ's issuance of a PSD pennit for the proposed Select Steel
facility would result in a discriminatory effect, EPA first considered the potential
adverse effect from the permitted facility using a number of analytical tools
consistent with EPA's Interim Guidance. It is important to note that EPA believes
that the evaluations of adverse, disparate impact allegations should be based upon
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I the facts and totality of the circumstances each case presents .
..,voes
To evaluate the impact of voes, EPA examined the permit
application submitted by Select Steel and a variety of analyses
conducted by MDEQ. With that information~ EPA considered VOCs
in their role both as precursors to ozone and, for some VOCs, as toxic
air pollutants (see discussion below concerning air toxics). In
examining VOCs as ozone precursors, EPA studied the additional
contribution of VOCs from the proposed Select Steel facility and has
determined those emissions will not affect the area's compliance with
the national ambient air quality standards (NMQS) for ozone.
The NAAQS for ozone is a health-based standard which has been set
at a level that is presumptively sufficient to protect public health and
allows for an adequate margin of safety for the population within the
area; therefore, there is no affected population which suffers "adverse"
impacts within the meaning of Title VI resulting from the incremental voe emissions from the proposed Select Steel facility. Therefore,
EPA finds no violation of Title VI or EP A's implementing regulations
associated with VOCs as ozone precursors.
The Complainants also have alleged that failure to require immediate voe monitoring for the proposed Select Steel facility will result in a
discriminatory effect. Select Steel's pennit condition regarding voe
monitoring allows Select Steel one year from plant start-up to
implement a continuous emissions monitoring system ("CEMS") for
, VOCs. MDEQ is not required to prescribe immediate VOC
monitoring because EP A's regulations allow the permitting authority
to impose post-construction monitoring as it "determines is
necessary." 40 C.F.R. § 52.21(m)(2). As discussed above, there would
be no affected population that suffers "adverse" impacts within the
meaning of Title VI resulting from the incremental VOC emissions
from the proposed Select Steel facility. For this reason, EPA finds
that, with regard to voe monitoring, MDEQ did not violate Title VI
or EPA's implementing regulations.
Lead
Similarly, to evaluate potential lead emissions from the facility, EPA
studied the additional contribution of airborne lead emissions from the
proposed Select Steel facility and has detennined those emissions will
not affect the area's compliance with the NAAQS for lead. As with
ozone, there is a NAAQS for lead that has been set at a level
presumptively sufficient to protect public health and allows for an
adequate margin of safety for the population within the attainment
area. Therefore, there would be no affected population which suffers
"adverse'' impacts within the meaning of Title VI resulting from the
incremental lead emissions from the proposed Select Steel facility.
Accordingly, EPA finds no violation of Title VI or EPA's
implementing regulations.
In this case, MDEQ also appropriately considered information
concerning the effect of the proposed facility's lead emissions on
blood lead levels in children in response to community concerns. EPA
reviewed this infonnation along with other available data on the
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incidence and likelihood of elevated blood lead levels in Genesee
County, particularly in the vicinity of the site of the proposed facility.
EPA considered this additional information in response to the
Complainants' concerns that the existing incidence of elevated blood
lead levels in children in the vicinity of the proposed facility were
already high. Overall, EPA found no clear evidence of a prevalence of
pre-existing lead levels of concern in the area most likely to be
affected by emissions from the proposed facility. Furthennore, EPA
concurs with the State's finding that lead emissions from the proposed
Select Steel facility would have at most a de minimis incremental
effect on local mean blood lead levels and the incidence of elevated
levels.
Air Toxics
For airborne toxics, EPA conducted its review based on information
presented in the permit application, existing TRI data, and MDEQ
documents. EPA reviewed MDEQ's analysis of Select Steers potential
air toxic emissions for evidence of adverse impacts based on whether
resulting airborne concentrations exceeded thresholds of concern
under State air toxics regulations. EPA also considered the potential
Select Steel air toxic emissions together with air toxic emissions from
Toxics Release Inventory (fRI) facilities, the Genesee Power Station,
and other major sources in the surrowiding area. EPA's re-.,iew of air
toxic emissions from both the proposed site alone, as well as in
combination with other sources, found no "adverse" impact in the
immediate vicinity of the proposed facility. Therefore, EPA finds no
violation of Title VI or EPA's implementing regulations.
Dioxin
The information gathered from the investigation concerning the
monitoring of dioxin emissions is consistent with EAB's analysis of
the issue.l No performance specifications for continuous emissions
monitoring systems have been promulgated by EPA to monitor
dioxins. Without a proven monitor, MDEQ was unable to impose a
monitoring requirement on the source. Therefore, EPA finds no
discriminatory effect associated with MDEQ's decision not to include
monitoring requirements for dioxin and that MDEQ did not violate
Title VI or EP A's implementing regulations.
Alleged Discriminatory Public Participation Process
To assess the allegations of discrimination concerning public process, EPA
evaluated the information from interviews with Complainants and MDEQ, and
from documents gathered from the parties. The first allegation was that the permit
was "hastily sped through" by MDEQ to avoid permitting requirements (i.e.,
conduct a risk assessment; provide opportunity for public comment on risk
assessment; provide meaningful opportunity for all affected parties to participate
in the permit process) imposed by a State trial court that are tmder appeal. The five
months between receipt of the complete permit application and permit approval is
actually slower than the average time of one and a half months for the past
twenty-six PSD permits approved by MDEQ. EPA's review found that the public
participation process for the permit was not compromised by the pace of the
permitting process. MDEQ satisfied EPA's regulatory requirements concerning the
issuance of PSD permits.
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The Complainants also alleged that the relationship between an employee of Select
Steel's consultant who is a former MDEQ employee and MDEQ led to
improprieties in the permitting process. Neither the documents nor the interviews
revealed. any improper or unlawful actions by MDEQ and Select Steel's
consultants during the permitting of Select Steel. Without any such evidence, EPA
cannot find any impropriety existed that contributed to an alleged discriminatory
process. ·
The Complainants alleged that the manner of publication of the notice of the
pennit hearing also contributed to the alleged discriminatory process. The
Complainants allege that publication in newspapers was insufficient to inform the
predominantly minority community because few community members have access
to newspapers --something the Complainants allege was brought to MDEQ's
attention during the permitting process for another facility in Genesee Township.
EP Ns regulations for PSD permitting require that notice of a public hearing must
be published in a weekly or daily ne""-spaper within the affected area. 40 C.F .R. §
124.10(c)(2)(i). In this case, :MDEQ went beyond the requirements of the
regulation and published notices about the hearing in three local newspapers.
Complainants also state that :MDEQ1s failure to provide individual notice of the
hearing to more members of the community also contributed to the alleged
discriminatory process. In addition to newspaper notice, EP A's regulations require
that notice be mailed to certain interested community members. 40 C.F.R. §
124.l0(c)(l)(ix), MDEQ mailed hearing notification letters a month in advance to
Fr. Schmitter, Sr. Chiaverini, and nine other individuals in the community who
had expressed interest in the Select Steel pennit --an action which is consistent
with the requirements of EP A's regulations. The mailing list that MDEQ
developed was adequate to inform the community about the public hearing, in part,
because the Complainants took it upon themselves to contact other members of the
community.
The Complainants also alleged that the location of the public hearing (Mount
Morris High School) made it difficult for minority members of the community to
attend. Complainants felt that the hearing should have been held at Carpenter Road
Elementary School. Both schools are approxL,nately two miles from the proposed
Select Steel site; however, the elementary school is located in a predominantly
minority area, while the high school is in a predominantly white area.± MDEQ
explored other possible locations and chose the high school, among other reasons,
because of its ability to accommodate the expected number of citizens and its close
proximity to the proposed site. The high school also is accessible by the general
public via Genesee County public transportation.
For all of these reasons, EPA finds that the public participation process for the
Select Steel facility was not discriminatory or in violation of Title VI or EPA' s
implementing regulations.
Conclusion
After reviewing all of the materials submitted and information gathered during the
investigation, EPA has not foW1d a violation of Title VI and EPA's implementing
regulations. Accordingly, EPA is dismissing the complaint as of the date of this
letter. Please note that the closure of this case does not affect your right to file a
complaint with OCR in the future.
Although EPA has dismissed this complaint, we believe that the Complainants
raised serious and important issues that merited a careful review. To the extent the
Complainants have identified general concerns about pollution in their community,
11/23/98 13:20: l 7
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including existing elevated blood lead levels in children, EPA encourages the State
to continue activities to address these concems. EPA is available to provide
technical assistance in these efforts. EPA also encourages the State to continue
working with this community to improve understanding of regulated activities in
their local environment and the Agency is available to facilitate these efforts
should the parties so desire.
More broadly, EPA believes that many of the issues raised in the context of Title
VI administrative complaints could be better addressed through early involvement
of affected communities in the permitting process. Such consultations will better
ensure that communities are fairly and equitably treated with respect to the quality
of their environment and public health, while providing State and local decision
makers and businesses the certainty they deserve.
In conclusion, please be aware that Title VI provides all persons the right to file
complaints against recipients of federal financial assistance; No one may
intimidate, threaten, coerce, or engage in other discriminatory conduct against
anyone because he or she has either taken action or participated in an action to
secure rights protected under Title VI. 40 C.F.R. § 7.100. Any individual alleging
such harassment or intimidation may file a complaint. 40 C.F.R. § 7.120(a). The
Agency would seriously consider and investigate such a complaint if warranted by
the situation.
Furthermore, under the Freedom of Information Act, it may be necessary to release
this document and related correspondence and records upon request. In the event
that we receive such a request, we Vvill seek to protect, to the extent provided by
law, personal information which, if released, could constitute an unwarranted
invasion of privacy.
Sincerely,
AnnE. Goode
Director
cc: Mr. Robert Bosar, Vice President
Dunn Industries Group, Inc.
7000 Winner Road, Suite 201
Kansas City, Missouri 64125
Scott Fulton
Acting General Counsel
U.S.EPA
David Ullrich
Acting Regional Administrator
Region V
U.S. EPA
Footnotes
11n the EAB's analysis of Complainants' PSD appeal concerning monitoring of dioxin, the Board
simi1ar1y concluded that "MDEQ's decision is not clearly erroneous." In re Select Steel
Corporation of America, Docket No. PSD 98-21, at 5 (EAB Sept. 10, 1998). That holding was
based, in part> on the fact that the Complainants made "no argument and points out no data to
refute MDEQ'sjudgment." Id
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2No concerns were raised about the manner in which the public hearing itself was conducted. See
Telephone Interview with Complainants (September 17, 1998).
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Last updated: November 2, 1998
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