NCD980602163_19981210_Warren County PCB Landfill_SERB C_Phyllis Glazer submittal to the NEJAC-OCR

PHYLLIS GLAZER
M.O.S.l:.S.
Mothers Organized To Stop Environmental Sins
Wasted Babies'" is a Proiccl o/ M.O.S.ES.
13231 WITIMORE CIRCLE • DALLAS, TEXAS 75240 • [phone] • FAX: [phone]
SUBMITTED BY PHYLLIS GLAZER TO THE
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(NalEajJaAaCCa}
Baton Rouge, Louisiana December 7 -10, 1998
(Originally Written as Comments for)
NATIONAL ADVISORY COUNCIL FOR ENVIRONMENTAL POLICY
AND TECHNOLOGY, TITLE VI IMPLEMENTATION ADVISORY
COMMITTEE (N.A.C.E.P.T.)
PHILADELPHIA, PENNSYLVANIA July 27 -28, 1998
On Behalf of
MOTHERS ORGANIZED TO STOP ENVIRONMENTAL SINS
(MO.S.E.S.)
13231 Wittmore Circle
Dallas, Texas 75240
[phone]
FAX [phone]
"To save one (ife is to save the worft{ entire" ... The Ta(mud
EPA -an interested party in Title VI disputes?
The EPA, in order to fulfill its expected role as the neutral decision-maker
responsible for adjudicating Tide VI complaints, must make every possible effort to avoid
any real or perceived conflicts of interest with the person or group filing a complaint. In the
case of M.O.S.E.S.' complaint, this issue is particularly important in light of the history
between M.O.S.E.S. and the EPA. M.O.S.E.S. had filed a lawsuit against the EPA in the
recent past with regard to the very facility that is the subject of the Tide VI complaint filed
by M.O.S.E.S. The EPA therefore had an interest in defending its actions with regard to the
facility and even defending the actions of the facility in order to exonerate itself in the
lawsuit.
It is easy to imagine possible resentment towards a citizens group in one section of
the EPA spreading to other sections. Although the EPA is large, it must share resources and
information. The EPA staff across the country regularly interact. In order to avoid any
conflict of interest or the appearance of a conflict of interest, the EPA should take great
precaution in insulating the Office of Civil Rights and any other staff involved with the
complaint processing from those who were involved in the lawsuit and from any negative
opinions or feelings that could be passed on to the EPA staff investigating a Tide VI
complaint.
Affected citizens from all Title VI communities have struggled too long to be denied
meaningful participation in this Committee
Because of an enormous imbalance in power between industry and affected citizens1,
the EPA needs to take special care to see that citizens from affected communities have a full
and fair voice in the process of shaping how Tide VI complaints will be handled. All Tide
VI communities need to be given the opportunity to have meaningful input into the
NACEPT Tide VI Implementation Advisory Committee's proposals. Five minutes "to speak
during the public comment period and the opportunity to submit written comments do not,
Industry has taken advantage of its comparatively vast financial resources to influence the
lawmakers, who in turn conduct oversight over the EPA, to ensure that their needs are addressed. By
contrast, community groups opposing discriminatory effects of permitting decisions have historically been
silenced by a multitude of forces, including poverty, fear of retaliation, and feelings of powerlessness.
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by themselves, constitute meaningful input. This extremely limited participation 1s an
affront to the communities who have struggled for years with the harmful impact of
discrimination and have spent much and traveled far to participate. Groups must be allowed
time to make presentations to the Committee regarding the kinds of disparate impacts
experienced in their community which have important policy implications for many other
Title VI communities. Most Title VI communities will need financial assistance to afford to
have a representative attend and participate.
Demographics and numbers never tell the whole story of a Title VI community
M.O.S.E.S. would like an opportunity to present more detailed information to this
Committee in order to show both why and how the totality of the circumstances must be
examined thoroughly in all Title VI complaints. Numbers and demographics tell little of the
very serious disparate impacts experienced by minorities in the Winona community. Because
these qualitative measures are not visible in census data, Winona's Title VI complaint up
until now has been treated as a very low priority at the EPA. When the totality of the
circumstances is known, however, the complaint will no doubt become a higher priority.
This Committee needs to assure that the totality of the circumstances become known in all
Title VI complaints.
Sensitizing the process to qualitative disparate impacts
The low priority treatment of the Winona community's Title VI complaint speaks to
the need to transform the investigation process and sensitize it to disparate impacts that
include critical qualitative impacts such as the destruction or desecration of historical and
cultural sites of national significance to a minority group. Also, those processing complaints
need to be aware of disparate impacts on select minorities, whose numbers may be relatively
small but the disparate impacts on them are made significant by the severity of the impact
and the clearly discriminatory indifference to their suffering. Indifferent and even hostile
agency behavior towards poor and minorities and the failure of the agency to enforce
environmental laws at the facility in Winona also factor largely into the disparate impacts
experienced there. A full investigation must go well beyond demographic information.
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Defining subtle racism -subtle disparate impacts -the cutting edge of Title VI
implementation
If these more subtle and qualitative disparate impacts are not understood and not
investigated, many Title VI complaints that involve very real and very serious disparate
impacts will fail. It is not the obvious Title VI complaints that need the special focus of the
Committee. It is the more complex, more subtle forms of racism that cannot be shown by
demographics alone that need this Committee's special attention to assure that minorities suffering
.from these more qualitative aspects of institutional racism are protected
Community contact essential
The Interim Guidance presently states that the Office of Civil Rights will conduct a
factual investigation to determine whether the permit at issue will create a disparate impact,
or add to an existing disparate impact, on a racial or ethnic population. The Guidance
should elaborate on the steps involved in the investigation so that all investigations will be
conducted in a uniform manner. It is essential that the investigation process include the
EPA contact with the community, rather than merely a paper hearing.
Personal testimony ferrets out subtle racism
Disparate impacts take many forms that can only be understood by a firsthand
account given in person. Investigators especially need to uncover situations involving subtle
institutional racism. Subtle racism may take the form of indifference to citizens' complaints.
Such indifference may appear on the surface to be benign neglect, but in fact operates as
deliberate discrimination. Gathering personal statements is a powerful tool for ferreting out
intentional neglect. An agency or facility may even voice concern regarding citizen complaints
but practice a subtle form of racism by a pattern of slowly acting upon, inadequately acting upon,
or of never acting upon complaints.
The unequal footing of the interested parties to the Tide VI complaint process needs
to be addressed in the EPA implementation of the Interim Guidance. Agencies and industry
have far greater resources with which to respond to a complaint than citizens have to support
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their Title VI complaints. The EPA needs to improve the process to ensure that it gathers a
fully developed record on which to base a decision. Though the EPA may elect at times to
meet with citizens, the EPA should be required to meet with the local activists, the affected
citizens, and the persons making the Title VI complaint. A public meeting in the
community should be convened to allow interested persons to step forward and speak. Such
persons may not have participated in the crafting of the Title VI complaint but may have
important information to add to the record. Unless the EPA investigators meet with the
individuals who may be affected by the facility, the EPA is contributing to the silencing of
those sectors who have been affected by years of discrimination. The EPA may need to meet
with some individuals in privacy and with anonymity because these individuals, for good
reason, may fear reprisals for giving testimony.
Getting EPA out of the box and into the real world
The EPA needs to take a proactive role and seek out the information necessary to
make an informed decision. Thinking outside the box won't come to anything if the EPA
remains in a box. It is unreasonable to expect an underprivileged community on its own to
present a full story of its treatment by the facility and the regulating agencies. Such
communities rarely have the resources to effectively present their position; and thus, if true
environmental justice is to be achieved, an EPA visit to the Title VI community, as described
above, is essential.
"Injustice anywhere is a threat to justice everywhere." Martin Luther King, Jr.
The recent tragedy in Jasper, Texas (only 152 miles away from Winona, Texas where
the American Ecology Environmental Services Corporation facility was located) involving a
murder of an African-American resident that has been widely-denounced as racially
motivated, signals the continued need to combat the lingering effects of racial discrimination
and intolerance in all sectors. The incident in Jasper points to the fact that the impact on
one individual can have a profound impact on an entire race of people and in fact our entire
nation. Similarly, disparate impacts due to the discriminatory placement or oversight of a facility
may so severely impact an individual or a small group of individuals as to constitute a violation of
Title VI.
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The Department of Justice in its own guidance document regarding Tide VI
recognizes that the disparate impact may not only be on a community but may be on
individuals. The Department of Justice states2:
"The ultimate determination whether a particular situation raises an environmental
justice issue will depend on an evaluation of the totality of the circumstances. However,
there are a number of factors that should be considered in determining whether any
individual situation does raise such an issue:
♦ Whether individuals, certain neighborhoods, or federally recognized tribes suffer
disproportionately adverse health or environmental effects from pollution or other
environmental hazards;
♦ Whether individuals, certain neighborhoods, or federally recognized tribes suffer
disproportionate risks or exposure to environmental hazards, or suffer disproportionately
from the effects of past underenforcement of state or federal health or environmental
laws;
♦ Whether individuals, certain neighborhoods, or federally recognized tribes have been
denied an equal opportunity for meaningful involvement, as provided by law, in
governmental decision making relating to the distribution of environmental benefits or
burdens. Such decision making might involve permit processing and compliance
acnv1nes."
State agency requests to scrap Interim Guidance document --short-sighted, selfish
At the first Tide VI Implementation Advisory Committee meeting in May 1998, a
representative from the Louisiana Department of Environmental Qualiry suggested that the
Interim Guidance document drafted by the EPA be scrapped and rewritten with the help of
the state environmental agencies. M .O.S.E.S. believes that under no circumstances should
this Guidance be scrapped as suggested by certain state regulatory agencies. The Interim
Guidance is an extremely important first step in developing a framework for the processing
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of complaints filed under Title VI of the Civil Rights Act of 1964. All stakeholders sitting
From the Department of Justice Title VI Guidance document entitled "Department of
Environmental Justice Guidance Concerning Environmental Justice Authority" made
pursuit to President Clinton's on the Advisory Committee, not just state environmental
agencies, need to have an opportunity to provide feedback to the EPA on the Interim
Guidance, apart from the formal public comment process, so that the EPA will have the
benefit of their input in finalizing the procedures. The Tide VI complaint process is geared
toward providing a desperately needed recourse for groups who have been unable to make
their opinions heard in any other forum because of race discrimination and lack of funds.
One bad apple is all it takes
Also disturbing to M.O.S.E.S. is the EPA's comment in footnote 13 of the Guidance
document which states that:
In some rare instances, the EPA may need to determine whether the impacts of a
single permit, standing alone, may be considered adequate to support a disparate
impact claim. While such a case has not yet been presented to the EPA, it might,
for example, involve a permitted activity that is unique (i.e., "one of a kind") under
a recipient's program.
M.O.S.E.S. can hardly believe that such a situation would be so rare or unique. It
only takes one facility to be sited in a predominantly minority community for a civil rights
violation to occur. M.O.S.E.S. believes that the EPA has been presented such a case by the
citizens of Winona, Texas when the number and seriousness of civil rights violations are
properly considered.
EPA ombudsman necessary for assisting indigent communities who lack resources to file a
Title VI complaint on their own
2 From the Department of Justice Title VI Guidance document entitled "Department of Environmental
Justice Guidance Concerning Environmental Justice Authority" made pursuit to President Clinton's
Executive Order No. 12898, 59 Fed. Reg. 7629, February 16, 1994.
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Many affected mmonty communmes that perceive they are being treated in a
discriminatory fashion are either not aware of Title VI or how they could file a complaint
under Title VI. These communities typically do not have the time or financial resources to
make their own complaint or to hire someone to help them. One citizen activist in Texas
involved in helping several communities file Title VI complaints has said that there are
several other communities that would file if they had assistance. To afford all communities
fair access to the protection of Tide VI, as Tide VI itself requires, the EPA needs to establish
an ombudsman who can assist communities in the process of filing a Title VI complaint. The
EPA needs to take a proactive role in informing communities that have or face the
permitting of a hazardous facility in or near their community, making certain that they are
made aware of their rights under Title VI.
EPA: Go to the people
M.O.S.E.S. would like to reemphasize the fact that if the EPA is going to implement
the legislative mandate behind Title VI of the Civil Rights Act of 1964, the EPA's processes
for responding to the complaints must acknowledge the extreme vulnerability of the
communities that the Act seeks to protect. The EPA must take extra measures to collect all
the facts necessary to make a reasoned decision. These measures mean involving the persons
who believe themselves to be affected, visiting the community to find others who are too
afraid or too ill to act on their own volition, and asking questions to get the full story. The
process of uncovering the truth is threatened by the fact that many community members
have been silenced by gag orders. These settlements and their gag orders may have been
made for the specific purpose of defeating the Title VI claim. These silenced parties may
have the most vital and essential information for the whole investigation. In order that the
EPA have access to this critical testimony, the investigators need some means to subpoena
these parties essential to the investigation who would otherwise be unable to speak.
M.O.S.E.S. hopes that the Advisory Committee will work to make the Interim Guidance a
more effective tool for addressing Title VI complaints.
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Attachment to Comments
Under Title VL does a disparate impact disappear when
minorities flee the harmful impact?
Some of you might have read about Wanda Erwin, a black woman from Winona,
Texas in the most recent edition of E Magazine. The editor found her story so compelling
that he began his editorial on environmental justice with her story. M.O.S.E.S. wishes that
Wanda could be here to speak for herself, but it has proved impossible since the only way in
which Wanda and her family could escape the dangerous hazardous waste facility that she
believed threatened the lives and health of her family, was to flee from her ancestral lands
and home which her family had passed down from generation to generation since the
abolition of slavery around 1870 -71. Shortly after Wanda and her family went by bus with
a total of 30 representatives from the Winona, Texas area to file their Tide VI complaint
with U.S. EPA in Washington, D.C. on June 7, 1994, the company settled their lawsuit
with Wanda's family. The company, Gibraltar Chemical Resources, Inc. (chat lacer sold to
American Ecology Corporation), did not buy her lands or her ancestral home--but her
family's silence.
A family who had a dream
Wanda and her family had had a dream--a dream of seeing their family living
together, side by side. She dreamed of building a brick residence for herself and eventually
seeing her three sons build their own homes on the land. The Erwins-an extended black
family of approximately fourteen people at the time, were the closest neighbors living within
1/4 mile of the facility. Wanda lived within 0.2 mile.
Historic family farm of generations has special cultural significance to tl;ie black
community
As Reverend Sylvester Curry, a black minister from Winona, Texas, who spoke to
this Committee at the last meeting explained, land that has been farmed by a black family
since the Civil War has a special historical and cultural significance to the black community
because so many black families lost their family lands over the years.
In the Winona area, many of the black farmers in the area lost their farms because
the U.S. army confiscated their lands during the second World War to build Camp Fannin,
an army base. Only two of the many black families ever got their lands back after the war as
promised. They were the only two that had retained lawyers to represent them. The Erwins
were a symbol of perseverance of the black community, the spirit of a race of people, in face
of more than a century of continued racial discrimination. The facility located on the area
that had been part of the army base. Also on the land that the facility owned was a site of
tremendous spiritual and cultural significance to the black community in the region-a slave
cemetery.
Persistent chemical odors, "upsets" sending out toxins from the facility, and threats
of physical violence from a facility worker made life next to the facility a living hell. Years
and years of heartbreak, worsening health conditions and fear for her children made it
impossible to go on. After a long and noble fight, Wanda and her family knew what they
muse do to save themselves.
M.O.S.E.S. was then informed that since the nearest minorities had left, in the eyes
of some, that dissolves their Tide VI complaint. The simple argument is: no more
minorities, no more Tide VI complaint. Under Title VI, does a disparate impact disappear
when the minorities flee the harmful impact?
In Title VI complaints, EPA must consider minorities who had to flee from harm
To allow a facility's wrongful and injurious actions towards a minority family to
defeat a community's Tide VI complaint because statistics changed when people had co flee
from harm, sets an intolerable example of further degradation. If che EPA does not cake into
consideration the minorities who had to leave, or flee as you will, to get their families-their
children to safety, it would be sadly ironic and grossly unjust. This would in itself set a
disturbing example of how a facility could get rid of any Tide VI complaints involving it. Is
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this the message that the EPA would like to convey to industry? This in itself smacks of
environmental injustice, the very reason for this Committee being formed.
Conceivably, a minority population could even be less than average in population
surrounding a facility, but if that facility in particular treated the minorities surrounding the
facility in a clearly discriminatory fashion that undoubtedly met the standard of a
discriminatory impact, why would this not be considered a civil rights violation deserving
protection under Title VI--especially when there is an extremely egregious discriminatory
impact as minority families experienced in Winona?
A well conceived justice system does not require that a party remain in danger in order to
pursue their cause of action
Are there any laws that require a party to remain in a highly dangerous situation with
their children in order to preserve their cause of action or bring charges? Can the perpetrator in
an assault and battery case claim innocence by showing that the victim fled the scene of the
assault? A well conceived justice system does not require that a party remain in danger in order to
pursue their cause of action or bring criminal charges, nor does it find a perpetrator innocent
simply because their victim fled. Why would this standard, common sense practice be any
different under Title VI? Why would it not especially be the case under Title VI which
specifically seeks to protect parties from impacts resulting from the just enactment of our
laws and/or their lack of enforcement.
Family's loss strikes at the historical and cultural identity of the entire black community
Indeed, the Erwins leaving, thereby allegedly dissolving the community's Title VI
complaint, constitutes perhaps the greatest disparate impact experienced by minorities in that
they had to suffer the heartbreak of abandoning their ancestral lands and farm, leaving them
in the hands, albeit not the ownership, of the very ones that wrenched their dreams of a
future from them. The disparate impact extends beyond Wanda and her family to the entire
black community because her family's loss strikes at the historical and cultural identity of the
entire black community not only in Winona, Texas but for all African Americans. Our nation
lost what should have already been recognized as a vital and living historical marker to the
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black experience in our country. It should have stood for the indomitable spirit of a people.
Instead, chis land and its heritage was destroyed by a process chat neither recognized nor
attempted to discern this kind of disparate impact nor had any appearance of trying.
Further, experience shows chat in all likelihood an affluent white family with a similarly rich
cultural and historical heritage would have been treated in a very different manner in chis
situation.
Acknowledging disparate impacts that cannot be measured m numbers of people or
percentages of minorities affected
In implementing Tide VI, a mechanism must be put in place in order that the fact
finding body in Tide VI complaints be able to discern and acknowledge disparate impacts
that cannot be measured in numbers of people or percentages of minorities affected. The
manner in which institutional racism most typically operates is through an indifference
cowards minority concerns. Masked by the appearance of benign indifference, in
institutional racism the neglect is in fact intentional. Ac the recent national convention of
the NAACP, speakers noted chat institutional racism today operates in a more subcle but still
tremendously harmful way.
Must civil rights abuses be perpetrated on large numbers before they are recognized
Must we expenence institutional civil rights abuses to be perpetrated on large
numbers before we recognize the wrong of the civil rights abuse-lest we forget Jasper, Texas
this past summer. It's a horror not only experienced by one black man but by the whole
black community nationwide and people of good conscience everywhere. Must we be black
to feel the pain of a black man? Must we be black parents to sympathize with the loss of a
son? Must we be black to know that we are human? The sick act perpetrated against one
single individual rightly shocked our nation and has launched Congress into ~ction to
toughen laws regarding such "hate crimes." Hate crimes here refer to racially motivated
crimes. Whether we are going to use our laws to give equal protection to minorities from
violent physical attacks is a civil rights issue.
Under Title VI, can the impact on one family alone be a disparate impact
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Under Title VI, can the impact on one family alone be a disparate impact? Most
certainly in Jasper, Texas (not more than 150 miles from Winona, Texas and in the same
geographic and socioeconomic area) the quantity of individuals harmed was not what called
on our nation's conscience and gave impetus for Congress to act. The impetus came from
the qualitative aspect of the wrong-the severity, the horror, the greatness of the evil. Can
we find no horror in the fate of the Erwins who suffered brutal institutional indifference?
Do we ignore its Title VI implications until larger numbers experience such severe
impact-or do we act with a common wisdom and understanding of what is right?
Winona: A collection of disparate impacts
The disparate impacts experienced by Wanda and her family do not stand alone. It
stands with a collection of institutional civil rights abuses that had a disparate impact on the
minority community. Looking at population statistics alone cannot uncover civil rights
abuses. The behavior of the facility, the state agency and the EPA towards members of the
minority and low income community can show, as it does in Winona, a clear disregard for
the civil rights Title VI is intended to protect.
Despite complaints, public hearings held during black revivals
Despite complaints from the Winona black community, public meetings and
hearings regarding the facility were held by the state agency and the EPA during black
revivals. This made it impossible for many members of the black community to attend.
This happened for many years. As Reverend Sylvester Curry mentioned in his comments to
this Committee at its first meeting, the black community's revivals had been on the same
dates for nearly 100 years and could not be changed to fir the scheduling of the EPA or the
state agency. The practice did not stop until M.O.S.E.S. went to the press with the ~tory.
Desecration of a slave cemetery
As mentioned, a slave cemetery was located on the grounds of the facility. Over
several months rime in early 1994, the facility set fires to the forests that had been home to
s
these humble graves, burning the area of the slave cemetery and nearly setting fire to the
nearest black residences. Members of the area's black community consider chis act of
burning over the area a desecration of their ancestors' burial grounds. On November 26,
1995, they showed their concern by staging an environmental justice march. Hundreds
came from miles around to rededicate the cemetery. You would not believe what they were
met with-a fire engine! There was a small fire near the grave area and it had to be put out
before all those hundreds of people and newscasters could get through to the grave site.
Because demographics alone are complex, EPA must look at qualitative disparate impacts
Smith County has a higher percentage of African-Americans than the state average.
M.O.S.E.S . believes that the highest concentration of people of color in Smith County is in
the area where the facility is located, especially downwind of the facility. M.O.S.E.S. has
made great efforts to collect demographic information including going door to door, but it
has been with great difficulty. Because Winona is a rural area, census tracks are large and
difficult to use to show concentrations of ethnic populations. Since establishing
demographics in the area of the facility is complex, the EPA must, especially in instances like
these, take great care to thoroughly investigate qualitative disparate impacts.
EPA community visit a must
We have explained here some aspects of the Winona community's Title VI
complaint, but by no means all aspects. The community has suffered many disparate impacts
that could only be understood by an EPA community visit. This visit as described in greater
detail in our comments involves speaking with the citizens who brought the Title VI
complaint.
Validating Title VI complaint may be only justice
No doubt it is too late to bring justice to Wanda Erwin and her family or the
members of the Winona community who experienced disparate impacts. Certainly the
recognition of the validity of their Tide VI complaint may be rhe only justice they ever
realize. Ir would give them some comfort to hopefully serve as a means of protecting other
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commun1t1es from having to suffer what they have suffered. It would help them find a
meaning in their suffering and they might no longer feel that going to the EPA and filing
their Title VI complaint was no more than their other attempts to bring government action
to their travail and their hardship. We ask that this Committee do everything in its power to
not let the Winona community down. If it comes to that, Winona shall never see justice
served by this government.
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