NCD980602163_19981207_Warren County PCB Landfill_SERB C_Cold Steel - How EPA shuts out the community and shuts down env. justice in decision on Select Steel-OCR

PHYLLIS GLAZER
M.O.S.1:.S.
Mothers Organized To Stop Environmental Sins
Wasted Babies'" is a Proicct o/ M.O.S.E.S.
-~ 13231 WITIMORE CIRCLE • DALLAS, TEX.AS 75240 • [phone] • FA.,X 960-8749 1. J
COLD
STEEL
How EPA shuts out the
community and shuts down
environmental justice in
their decision on
Select Steel
DECEMBER 7, 1998
BY MOTHERS ORGANIZED TO STOP ENVIRONMENTAL SINS
(M.O.S.E.S.)
13231 WITTMORE CIRCLE
DALLAS , TEXAS 75240
972-960-1 421
FAX [phone]
"To save one (ife is to save the wor(d entire" ... The Ta(mud
Printecl 011 Recyclecl Content Paper llsin~ S<>y-Rasecl Ink
,
Overview
Years of Denial
For years communities raising environmental justice concerns have
been denied their most basic right to a ,,fair process-now EPA has
made that process dramatically worse
Communities filing Tide VI complaints alleging environmental racism have suffered already
from several years of unjustifiable inaction by EPA.' EPA's years of delays have denied these
Tide VI communities due process and their right to protection under Tide VI of the Civil
Rights Act of 19642• Now, the more than 20 communities, which still have active
complaints, are being made to bear a much more serious denial of their right to due process.
Communities attempting to assert their rights are now shut out by a highly lopsided
investigation and decision making process established by EPA in its first decision of a Tide
VI complaint.
EPA, in a grossly unfair manner, relies on evidence EPA solicits from the state agency
without EPA affording the community ordinary due process. EPA apparently does not offer
the community an opportunity to examine and analyze the state's evidence, respond to the
evidence or offer contrary evidence. Further, EPA adopts the state agency's reasoning in
virtually all of its decisions, without a fair opportunity for rebuttal by the community. An
analysis reveals both the highly flawed process and biased reasoning employed by EPA in its
first decision of a Tide VI complaint.
After years of delays, EPA suddenly took up a very recent complaint, placed the case at the
front of the line and using an extremely hurried and one-sided process delivered its first
decision. The complaint out of Flint, Michigan is known as Select Steel. The community,
in an area of Flint with a very high minority population, complained to EPA that a permit
granted by the state agency to a steel recycling mini-mill in their area would violate the
community's rights under Tide VI. The complaint alleged minorities would be subject to
discrimination by exposure to a disparate amount of hazardous pollution from this industrial
facility. The community filed its complaint in early June, 1998. EPA's Office of Civil
Rights excepted this administrative complaint for investigation in mid-August 1998. The
EPA conducted its investigation, did its analysis and delivered its decision in late October,
1998.
1 The first Title VI complaints were filed in 1993 and are yet to be resolved. Referring to environmental
justice complaints, 40 C.F.R. § 7.120 requires that "the OCR shall promptly investigate all complaints filed
under this section ... " Further, 40 C.F.R. § 7.115 requires EPA to report preliminary findings on a complaint
within 180 days from the start of the complaint investigation.
2 Section 601 of Title VI provides, "No person in the United States shall, on the grounds ofrace, color, or
national origin, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000(d).
2
Analysis
Bad Process and Biased Decisions
How EPA 's process and decision in Select Steel leaves citizens out in
the cold
The following analyzes demonstrate in detail how EPA, in its first decision of a Tide VI
complaint, used a highly arbitrary approach for gathering evidence and testimony that in an
ordinary administrative or judicial hearing would have constituted a denial of due process for
the complainants. Further, the EPA decision offers rationalizations for disparate impacts
which are the kind of arguments made by industry. Citizens allege what appears to be
legitimate disparate impacts which Title VI and EPA regulations are intended to prevent, but
EPA ruled that they did not rise to a level of disparate impact. EPA, thus, has set the bar for
a disparate impact high in a way that may be defeating the purpose of Title VI.
Part I. EPA' s lopsided process
EPA greatly favors evidence from the accused party ...
In its investigation of a Tide VI complaint from community members in Flint, Michigan,
the EPA relied heavily on documents, information and statements by the Michigan
Department of Environmental Quality (MDEQ) in rejecting the complaint. An
examination of EPA's 40 page investigative report for the Select Steel complaint3 in Flint
raises serious questions as to whether the complainants received due process and whether the
allegations by citizens were treated fairly .
... despite discovered distortions and inaccuracies
EPA makes no comment regarding MDEQ's demographic analysis, which EPA's figures
showed to be highly inaccurate and distorted. The complainants asserted that "the vast
majority of the people within 3 miles of the proposed site are minority Americans and will be
burdened with a disparate impact of pollution in an already deeply polluted area."4 MDEQ,
however, is clearly refuted by EPA's decision that a six mile radius is the relevant
3 U.S. Environmental Protection Agency Office of Civil Rights Investigative Report for Title VI
Administrative Complaint File No. 5R-98-R5 (Select Steel Complaint). Hereafter referred to as
Investigative Report.
4 Investigative Report p. 3
3
area5-rwice the distance complainants are concerned about and six times the distance that
the state considered significant.
The old "one mile is all you need" trick
MDEQ's reason for selecting one mile as the area of concern becomes highly suspect when
looking at the demographic figures furnished by EPA. Simply put, the population in the
immediate vicinity of the facility is an average mix of white and black for Michigan, but
beyond one mile, the percentage of black residents skyrockets. MDEQ avoided any finding
of disparate impact by refusing to include any population beyond one mile in their analysis.
Lies, Damn Lies and Statistics:
MDEQ's statistics are also highly inaccurate and clearly favor their agency's position that
there is no potential for disparate impact. EPA reports that:
MDEQ found that the population within 0.5 miles of the site is 88.5%-93.1 % white
and 4.4%-7.7% black. Within one mile, MDEQ found that the population is 93.3-
94.3% white and 3.8%-4.2% black. MDEQ states that inclusion of populations
beyond one mile was "virtually irrelevant."6
These findings are contradicted by EPA' s findings that state:
At one mile from a point location representing the approximate center of the facility
land parcel, the population is 13.8% minority, at two miles it is 37.2% minority, at
3 miles it is 51.1 % minority, and at 4 miles it is 55.2% minority.7
EPA s failure to comment on discrepancy shows bias
EPA's figures, that contradict MDEQ, are not accompanied by any commentary by EPA on
the noticeable discrepancies or the attempt by MDEQ to distort the demographics by
limiting their investigation to only one mile. This striking omission makes EPA appear
partial to MD EQ.
Somethings rotten in Denmark-did the state proffer false testimony?
EPA not only failed to comment on the great inaccuracies by MDEQ which EPA discovered,
but went on to accept MDEQ's analysis and statements regarding other matters critical to
the complaint, even though other information also appeared to be false when EPA checked
the information.
5 Investigative Report p. 31 "EPA modeled average concentrations at each inhabited Census block within
six miles of the proposed site as a reasonable assumption of the likely maximum geographic extent of
potential impacts."
6 Investigative Report p. 8
7 Investigative Report p. 12 The fact that the facility is located "within a 53 acre land parcel" p. 12 may
help explain why demographics in the direct proximity of the facility differ greatly from demographics at a
distance of two, three and four miles from the facility.
4
The EPA report states that "complainants wanted the hearing held at Carpenter Road
Elementary School." The report further explains that:
The Air Quality Division Hearing Officer indicated that she contacted the Carpenter
Road School. Interview with Susan Robertson (Oct. 21, 1998). The Principal of
Carpenter Road Elementary School, however, has no recollection of being
contacted about such a hearing and said that he normally welcomes such events
(emphasis added).8
This situation appears to merit further investigation. EPA, however, found that because the
meeting was held within 2 miles of the site and was accessible by public transportation, and
that MDEQ had checked with some other schools, that the complaint "does not rise to the
level of a violation of Tide VI or its regulations."9
Citizens need due process, not dubious process
No fair opportunity for citizens to review evidence and offer rebuttal
The outcome in litigation or an administrative hearing might be different where both sides
would be allowed to present evidence and rebuttal testimony on the issue. EPA, in
investigating this complaint, relied on evidence and testimony from MDEQ and apparently
did not give the same opportunity to the citizens to present evidence or rebuttal testimony.10
Citizens, though interviewed regarding the location of the hearing, it appears were not given
any practical opportunity to present evidence beyond their bare complaint on this issue. No
evidence or rebuttal testimony regarding difficulties for minorities in reaching the location of
the hearing, for example, are mentioned.
Again, the fact that EPA could not confirm claims made by MDEQ employees raises
concerns regarding EPA's heavy reliance on MDEQ's statements and record of decision in
the permit hearing. The Environmental Appeals Board (EAB) found one of MDEQ's
responses to citizen allegations "somewhat misleading." MDEQ in response to citizen
concerns that VOC emissions would, under the permit, go unmonitored for one and
possibly up to two years stated that "VOC emissions monitoring is not required under
federal law."11
BAB finds comments by state while technically true, "somewhat
misleading"
EPA explains that "[t]he EAB found that statement, while 'technically true, is [was]
somewhat misleading,"'12 because the EPA delegates authority to require VOC monitoring
to the state where the state determines it necessary. Thus, MDEQ could have required VOC
monitoring as requested by the citizens if it deemed this necessary, but responded with what
even the EAB recognized as a half-truth designed to support MDEQ's own position.
8 Investigative Report p. 39
9 Investigative Report p. 40
10 Investigative Report p. 39
11 Investigative Report p. 27
12 Investigative Report p. 27
5
How many more half truths in state documents heavily relied upon by
EPA?
This raises the issue, in relying on MDEQ's record of decision and other documents, how
many half truths were there that EPA did not uncover? How often was information
provided co EPA by MDEQ presented in a biased or subjective manner which citizens
should have had an equal opportunity to rebut?
Rushed permit? EPA relies on state's analysis of the facts; adopts , . . state s interpretation
Another example of the lopsided process conducted by EPA, is EPA' s response to the
citizens' allegation that the permit process was improperly rushed. Citizens expressed their
concern that the permit was rushed to avoid any potential consequences from an adverse
decision in ongoing litigation regarding another facility in the area. The EPA relied on a
document provided by MDEQ which contained a characterization of the facts chat
advocated MDEQ's position. 13 Citizens were not afforded the opportunity to provide their
own intererecacion of these faces nor were they allowed to rebut the state's interpretation of
the data. 4 The EPA adopted the state's interpretation and went further to make
assumptions that are not substantiated by any investigation. 15
Who s the judge? Who s the defendant?-
EPA blurs the role of the state agency in a Title VI complaint
In the permit process, the state agency has a very different role than they do in a Title VI
complaint. In the permit process, the state agency is the decision maker. In the Title VI
complaint, the state agency is the defendant. EPA appears to blur these two roles into one in
the manner in which EPA decides chis first Title VI complaint. Frequently, in Select Steel,
EPA treats the state agency MDEQ as a lower administrative court instead of a defendant of
a complaint.
13 Investigative Report p. 37
14 Investigative Report p. 37. The average time for MDEQ to issue a permit has been eight months. Select
Steel received their permit in five months, just about a week before oral arguments started in a case that
could have had an adverse impact on Select Steel's permit application.
15 Investigative Report p. 37. The state submitted information showing the average time for MDEQ to
issue a permit on completed applications was one and a half months. Select Steel submitted a completed
application and EPA deduced this is the reason for the shorter time period. Citizens, however, were not
allowed an opportunity to rebut this presumption. Average times for completed applications for very large
facilities, such as the one proposed by Select Steel, may indeed be longer than five months. Citizens were
not allowed the opportunity, or the time to perform their own analysis of the data which may have put the
issue in a very different light. Had citizens been allowed to do discovery, as allowed in judicial and
administrative hearings, they might also have uncovered tangible evidence of a process rushed due to
concerns over a possible adverse decision regarding another facility in the area.
6
EPA 's review not independent of states initial review-
EPA merely reviews the states analysis for potential toxic exposure, but
does not conduct an independent analysis, which may reveal biases in the
states methodology
EPA reviews some of the state agency's technical analysis in a manner similar to a higher
administrative body reviewing a lower court's decision to see if the decision was reasonable
based purely on the record from the lower court and not an examination of additional
evidence. This is extraordinarily ironic, as it is in great part the appropriateness and
reliability of state agency's process and findings that are at issue. The most reliable method
for accurately determining whether a state agency is biased or has conducted its analysis in a
manner that overlooks a disparate impact resulting from one of its permitting decisions is for
EPA to conduct its own independent investigation and analysis. Overall, EPA looked at
relatively little evidence beyond that provided by the state.
No citizen analysis considered-
EPA lacks the critical balancing consideration of an analysis conducted by
citizens, which may reveal disparate impacts that the state may have
chosen to obscure in their analysis
EPA's investigation should, as in all normal judicial proceedings giving due process, allow the
other party, the citizens in this instance, an opportunity to review the evidence submitted by
the state and offer their own evidence and rebuttal testimony. A seemingly scientific analysis
conducted by the state showing no disparate level of exposure for minorities may appear to
stand on its own merit. Findings by the state may go unquestioned until a toxicologist hired
by the citizens offers a completely different and equally scientific analysis, which demonstrates
that indeed a very large disparate impact from toxic exposure of minorities couU occur. This
would necessarily shift how EPA would have to view the situation. EPA's current
methodology as applied in the Select Steel decision, however, does not appear to allow for
this critical counter-point by citizens, which should be factored into EPA's finding of
disparate impact.
Questions, questions, disturbing questions
EPA's tremendous reliance upon the state agency's information for resolving Tide VI
complaints raises numerous questions regarding the fairness of the process. Is it appropriate
or even legal for the EPA to heavily rely on information developed by the accused party in
EPA' s investigation of that accused party, especially when the trustworthiness of the accused
party and its findings are at issue? Can an accused party report alleged facts to an
investigating body that in turn relies on the accused party's representations as factual and
does not conduct its own fully independent investigation of the facts or allow the opposing
party a fair opportunity at rebuttal?
Still more questions arise out of the Select Steel decision. Especially in instances where the
accused party's version of the facts have been found to be "somewhat misleading" should
7
their findings and version of the facts be substantially relied upon? Is there not some basic
constitutional problem to having the defendant also be treated in effect as the initial trier of
fact by the final decision maker, EPA?
Scales of justice tipped significantly in favor of the state-
Citizens not given opportunity to participate on the same scale as the state
in presenting evidence and analysis
EPA s current process allows the superior resources of the state to be a
critical deciding factor in outcome
EPA states that "EPA's ability to expeditiously render this decision was facilitated
significantly by the record of decision developed by the State in this case. 16 Certainly every
party in a controversy has a right to respond, but for a decision to be "facilitated
significantly" by one party and not by the other party is a fundamental injustice. The other
party, the citizens, did not and could not participate on the same scale and thus the state
agencies should either not be allowed to "facilitate significantly" or the citizens should be
given an equal opportunity to "facilitate significantly." It is nearly impossible to imagine
putting a small citizens group on equal footing with a state agency with the resources,
expertise and authority that the agencies have available. It seems that the only fair situation
is to assure that the parties are both given a fair and equal process. At the very least, both
sides should be allowed to present evidence on all issues, give testimony and rebut evidence
and testimony.
Technically superior analysis can still be wrong on the merits
A state agency with all of its resources may be able to offer information and analysis that is
technically superior but still wrong on the merits. Again, citizens need a fair chance to rebut
an agency's analysis. EPA technical support for citizens may be necessary to assure a fair
process. EPA may also want to consider a type of friend of the court brief from larger citizen
groups that are involved in environmental justice issues that may help lend perspective to
some of the evidence currently only submitted by one side-the state.
Conclusion: Start from scratch-and give citizens an equal
opportuni-iy to present their own analysis and rebuttal
A form of de novo review by EPA, which offers an equal opportunity for citizens to present
evidence, analysis and rebuttal would be much more appropriate in Title VI complaints.
EPA 's process must take into consideration that there is always the possibility of the state
agency distorting the facts or analyzing the situation in a manner that serves the state's
interest. At the very least, a potential bias in the state's analysis could be offset by an
opportunity for citizens, with equal access to resources, to present their own analysis.
A decision of this magnitude should be decided by Administrative law judges in an
administrative hearing at the federal level. This administrative hearing would follow the
16 Letter from Ann E. Goode, director of EPA 's Office of Civil Rights. The letter was dated October 30,
1998.
8
rules of the Administrative Procedure Act (APA). The APA assures that both parties would
receive due process. The current system appears far too loose and arbitrary to offer
communities fair and reliable results.
Part II. EPA rationalizes disparate impacts
EPA-still stuck thinking inside the box ...
EPA found that there was no adverse impact from the permitted facility, and thus without
any adverse impact, EPA concludes that a finding of disparate impact is not possible.17 This
is a very narrow definition of adverse impact. Simply the presence of an industrial facility
near a residential area can depreciate land values. Industrial facilities are typically
unattractive, noisy and quite often dangerous due to accidents at the facility. 18 Often an
issued permit is violated and pollution levels are exceeded. 19 Also, levels of emissions that are
set by policy can still be very hazardous for many individuals.20
... and thinking more like industry everyday
EPA determined that additional ozone would "not affect areas compliance with the national
ambient air quality standards (NMQS) for ozone,"21 and thus, by EPA's reasoning, could
not cause any disparate impact. Though the region's compliance may not be affected, the
immediate neighborhood may have higher ozone levels than the region itself and may well be
adversely affected as ozone is associated with serious respiratory problems such as asthma.22
This approach by EPA appears to deliberately avoid adhering to Title VI. By looking at a
broader area, EPA 's approach can create the appearance of checking for disparate health
impacts, but by ignoring the area immediately surrounding the facility, which is the area that
must be analyzed, EPA fails to determine the real impact of ozone on the nearby minority
community.
Emissions okay for the ''attainment area "-what about minorities
living nearby?
The attainment area that EPA considered in Select Steel is Genesee County where the
proposed facility would be located. The report does not state the size of the county.
Though Genesee may not be a large county, it likely encompasses an area larger than the
17 Investigative Report p. 27 "Because EPA has determined that there is no "adverse" impact for anyone
living in the vicinity of the facility, it is unnecessary to reach the question of whether the impacts are
"disparate."
18 Newspapers in November 1998 have reported large industrial accidents in the U.S. such as a major
explosion at a refinery in Washington.
19 The community of Winona, Texas has brought a Title VI complaint against the state of Texas where a
facility in an area with a large minority population was allowed to have hundreds of compliance violations.
20 Investigative Report p. 13 "EPA recognizes that there is no discernible threshold of physiological
effects identified for any of the NAAQS pollutants and that there is a wide variability of responsiveness
among individuals."
21 Letter from Ann E. Goode, October 31, 1998 p. 3
22 Investigative Report p. 15 "For example, increased hospital admissions and emergency room visits for
respiratory causes have been associated with ambient ozone exposures."
9
affected minority community in the immediate vicinity of the facility. If EPA continues to
apply this analysis in other Tide VI complaints, the attainment area may prove to be
significantly larger than the affected area near the facility and thus, what appears safe for the
larger area may not be safe for the smaller area.
Specifically stated, a substantial increase in ozone in one part of an attainment area may not
result in non-compliance with NAAQS, but could certainly result in greater health problems
in the immediate neighborhood of the facility releasing the ozone producing chemicals.
Negative health effects that create a disparate impact could be present even if "thresholds of
concern" are not exceeded. Further, thresholds are often lowered based on new scientific
information which finds them to be unsafe.
''Acceptable" pollution? Depends on who lives nearby
Should minorities be exposed to more of the pollution EPA finds
"acceptable" than whites?
The EPA's report offers the rationale that some pollution is "acceptable."23 EPA does not
adequately address, in the context of Title VI, the fact that this same allegedly "acceptable"
pollution can still be highly undesirable and produce adverse effects which in turn can be the
source of a disparate impact. Even by EPA's admission, these "acceptable" emissions can still
be very dangerous to some members of our society. EPA mentions in its report that some
chemicals can cause cancer at any level of exposure. 24 Shouldn't the burden of these allegedly
''acceptable" levels of pollution also be shared equally under Title VI?
Telephone, telegraph, tell an interested parry-EPA 's faulry reasoning
on adequate notice
EPA again relies on very poor reasoning that serves as a rationalization for MD EQ providing
inadequate notice to a large population of minorities who could not afford newspapers where
the notice was published. EPA found that this lack of notice was cured by notifying nine
interested parties ~ mail with the assumption that these interested parties would inform the
entire community. 5 EPA' s reasoning fails under even the most casual analysis.
The fact that interested parties are people that have jobs and family duties to attend to does
not seem to occur to EPA. Life's obligations do not always allow a handful of citizens the
ample time and resources needed to notify an entire community. Further, these interested
parties may be out of town, busy with other projects, sick, no longer involved in the project
or in any number of other circumstances.
23 Investigative Report p. 25
24 Investigative Report p. 33 "the probability of contracting cancer is not generally assumed to have a
threshold level (i.e., there is some probability, however small, at any level of exposure)."
25 Investigative Report p. 11 "Regarding direct notification about the hearing, MDEQ limited its mailings
because they believed that Fr. Schmitter and Sr. Chiaverini would act as the contact point for their
community and alert other interested parties about the proceedings."
EPA: Sorry to hear you' re too poor to get the paper, but we did mail
notices to a few people in your part of the city
For all of these reasons, besides lacking the time and resources to reach a significant
percentage of people, it is inappropriate for EPA to consider that a mailing to a handful of
interested parties carries the presumption of notice to a large community. 26 EPA cannot shift
this agency duty of proper notice to the citizens themselves. Notice and due process are not
something that a party can provide to itself. Due process is something that can only be
provided by the adjudicating body. A community or party cannot be expected to provide
proper notice and due process to itself.
You're not going to let a little asthma bother you, are you?
EPA excludes acute effects of pollution from disparate impacts
Another prime example of serious disparate impacts that were ignored by EPA in their
investigation are the acute effects from toxic exposure. Acute effects were not considered as
disparate impacts.27 Only chronic effects were considered. This is grossly unjust as odors
and irritation alone can make an area unlivable and may even trigger respiratory problems
that are fatal. Acute effects must be considered in any proper handling of a Tide VI
complaint.
EPA's magical hazard index: No matter how high the numbers go,
there's still no hazard!
No wonder EPA can't find any disparate impact
Another type of analysis used by EPA, which calls into question EPA's ability to recognize or
acknowledge a real disparate impact, is EPA's interpretation of data on a "hazard index."
EPA found that a "hazard index" of less than 1 does not support a finding of adverse health
effects. However, when the hazard index is greater than 1 and even as high as 80, the EPA
finds this inconclusive.28 The index can work in favor of polluting facilities to find them safe
but in this case even with very high numbers, does not work in favor of citizens to find a
facility unsafe and causing a disparate impact. An index or any analytical tool which can
only favor one side works an injustice in itself.
26 Investigative Report p. 39 "The mailing list that MDEQ developed also met EPA's requirements and
was not inadequate to inform the community about the public hearing, in part, because the Complainants
took it upon themselves to contact other members of the community."
27 Investigative Report p. 31
28 Investigative Report pp. 34-35 "On the non-cancer side, most of the blocks within the six-mile circle
are below the hazard index of I, even with all non-carcinogenic chemical effects combined. There are a
substantial number of blocks, however, which have hazard indexes between 10 and 80 ... these values can
be termed "not necessarily safe," but neither can there be adverse health effects definitely predicted upon
this basis alone."
11
Conclusion
EPA 's process lopsided and rationalizations for disparate impacts
disturbing
Both EPA's process and reasoning in the agency's first decision of a Tide VI complaint are
disturbing. Frequently, EPA based its decisions on evidence and testimony presented by the
state agency, MDEQ, which complainants did not have a fair opportunity to review. As a
result, citizens could not offer their rebuttal. Regarding several specific allegations, EPA
refers to evidence offered by MDEQ but does not refer to any evidence or testimony by the
citizens beyond the bare allegation.
Citizen evidence conspicuously absent in EPA 's first decision
This raises serious questions regarding the quality of the investigation and the fairness and
objectivity of the process. Did the citizens, in fact, offer more evidence in their testimony
which EPA completely omits from its Investigative Report? In their investigation, did EPA
simply fail to request any documentation from the citizens for specific allegations such as
evidence of hardship for the minority community in reaching the hearing location? Such
evidence is conspicuously absent from EPA' s report.
Startlingly inaccurate information and distortions by the state agency
does not prevent EPA from relying heavily on the state's analysis and
interpretation of data
A further concern is the accuracy of the information upon which EPA relied as EPA's own
findings in some instances significantly contradict the state agency's findings. However, EPA
did not conduct its own investigation of all of the facts and at times relied entirely or
primarily on the state agency's representations.
Disregarding adverse impacts helps f PA find no adverse impacts
Equally disturbing are EPA's rationalizations for why an industrial facility producing more
pollution in a minority area does not rise, in EPA's opinion, to a level of concern.
Unquestionably, the Select Steel facility will have a negative impact on the surrounding area
and those negative impacts will disproportionately affect minorities. EPA, however, in a
tortured use of the language, finds that the facility will have no adverse impact. To arrive at
this conclusion EPA disregards all acute impacts, which have proven, in other instances, to be
extremely serious. Further, EPA employs the highly dubious reasoning that since the facility
does not cause an attainment area which includes the entire county to exceed NAAQS
standards, that the facility also does not seriously impact the immediate vicinity of the
facility.
Does EPA 's exclusionary process violate the spirit of Title VI?
EPA's process for deciding Title VI complaints has the effect of excluding minority citizens
and itself appears to violate the spirit of Title VI. The language of Title VI specifically
12
j
protects minorities from this form of exclusion. The act states "[n]o person in the United
States shall on the grounds of race, color, or national origin, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance (emphasis added)." 42 U.S.C. § 2000(d). Though
Title VI may not apply federal agencies, the President's Executive Order 12898 of February
11, 1994 certainly gives federal agencies the responsibility "to the greatest extent practicable
and permitted by law ... " to " ... make achieving environmental justice part of its mission ... "
Time to melt down the cold steel wall shutting citizens out and recast
it into the scales of justice
For these and other reasons, both EPA's process for investigating and adjudicating Title VI
complaints and the reasoning employed by EPA in implementing the substantive provisions
of Tide VI, need serious reforms in order to create a fair process and accurate
implementation of Tide VI. An administrative issue of this magnitude needs the type of
formal process afforded by an administrative hearing. An administrative hearing held on the
federal level by administrative law judges would follow the rules of due process set out in the
Administrative Procedure Act and agency regulations. M.O.S.E.S. is suggesting for these
administrative complaints under Tide VI the type of administrative hearing that would
require both sides an opportunity to submit evidence, review evidence submitted by the
opposing party and a chance to respond to evidence submitted by an opposing party. As
citizens bringing environmental justice complaints have been subject to threats and violence,
the process should be designed to protect the safety and identity of citizens upon their
request.
Finally, controversies involving these types of racial issues should only be handled by trained
Civil Rights investigators who are highly familiar with minority issues and the realities of life
in poor, minority communities. EPA's decisions in Select Steel, particularly regarding
notification of the community and location of the hearing, reflect the uninformed outlook of
EPA investigators.
No environmental injustice in America?
EPA has already thrown out approximately half of the Tide VI complaints filed. Affected
minority communities which are typically poor, do not file Tide VI complaints easily, in
fact, many if not most of those that could file Tide VI complaints simply do not know how
to file and many do not even know about Tide VI.29 Those that have filed Tide VI
complaints have done so with great effort and much uncompensated work. Compensation,
generally speaking, is not the issue. The issue is one of environmental justice and future
safety and protection of families and loved ones, fairness and justice under the law, human
rights and constitutional rights to life, liberty and the pursuit of happiness. Those who have
filed Tide VI complaints believe that "an acceptable risk" designation for their families and
loved ones does not respect their right to life or liberty and, most certainly, not happiness.
29 Executive Order 12898, 59 Fed. Reg. 7629 (Feb. 11, 1994) states that " ... each Federal agency shall make
achieving environmental justice part of its mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental effects of its programs, policies, and
activities on minority populations and low income populations in the United States ... (emphasis added)."
EPA, under this Executive Order, needs to consider the discrimination these communities face due to their
deciding Title VI complaints because the tremendous inequality in resources between the state agencies and
the low income minority communities.
13
When EPA dissects The Big Picture-ie. environmental racism in America--into separate little
pictures, it becomes all too easy to throw our these hard placed complaints. Ir has all the
appearance chat EPA is declaring chat there is no environmental injustice in America. If char
be the case, then where are all the affluent white communities facing hazardous waste or
ocher dangerous facilities in their communities or side of town? EPA seems to be raking
years to determine char there is no problem with environmental injustice or racism in
America. As Mark Twain once said, ''Denial ain't just a river in Egypt!"
14